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International Law 







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This volume of International Law Situations for 1934 
has, as in recent years, been prepared by George Grafton 
Wilson, LL. D., professor of international law at Harvard 
University. It covers topics upon which opinion has 
been changing, particularly since 1910 and which have 
been the subject of discussion by the War College Class 
of 1935. The method followed has been to propound 
situations for consideration by the officers, members of 
the class, and after critical discussion to organize the 
material for publication. The conclusions reached are 
in no way authoritative but the notes afford a convenient 
purvey of materials relating to the subjects presented in 
the situations. 

In order to increase the usefulness of this publication, 
criticisms and suggestions covering timety topics for dis- 
cussion will be welcomed by the War College. 

E. C. Kalbfus, 
Rear Admiral United States Navy, 

President Naval War College, 

June 25, 1935. 


With the completion of this year's course in interna- 
tional law the thirty-fifth year of continuous association 
of Prof. George Grafton Wilson, Ph.D., LL.D., with 
the Naval War College came to a close. At the final lec- 
ture of the year, on March 25, 1935, the President took 
occasion to recognize the valuable services of Professor 
Wilson, past and present, and to express to him the ap- 
preciation and esteem of the President and officers of the 
Naval War College and of the naval service at large. 




Situation 1 . — Transfer and capture 1 

Solution (a), (b), (c), and (d) 2 


General 2 

Pre-war period 3 

Transfers, Crimean War, 1854-56 4 

Attitude of maritime states, 1908 5- 

Articles of the Declaration of London 5- 

Time element in transfer 6 

Changing aspects of transfer 6 

Rules of transfer in World War 6 

Transfer of the Dacia^ 7 

British attitude, early 1915 8 

French attitude, early 1915 14 

Decision in case of the Dacia 16 

Corporate ownership 17 

Abrogation of Article 57, Declaration of London 1& 

Internment 20 

Transfer of goods in transitu 21 

Convoy 23 

Declaration of London on convoy 25 

Attitude of the United States in 1914 27 

Swedish proclamation, 1915 28 

Armed neutral merchant vessels 2& 

Attitude of belligerent toward armed neutral mer- 
chant vessels 29 

Action of the United States, 1917 32 

Armed neutral merchant vessels in foreign neutral 

waters 32 

(a) Transfer of vessels before war 34 

(b) Seizure of flour on the Dale 35 

(c) Convoy " 35 

(d) Merchant vessels and submarines 36 

Solution (a), (6), (c), and (d) 36 

1 Attention is called to the Appendices in which are the joint resolu- 
tion of August 31, 1935, regulating export, transport, etc., in time of 
war ; the President's statement in approving the resolution ; and the 
President's proclamations of September 25, and October 5, 1935. These 
appeared after this volume was in press. 




Situation II. — Interference with ships 39 

Solution (a), (6), (c), and (d) 40 


Treaties and international law 41 

Aircraft station vessel 42 

Aircraft carrier 43 

Regulations of United States, 1914 44 

Naval vessel in port 46 

The Somers, 1898 1 47 

American attitude on submarines, 1930 47 

Treaty agreement on rules for submarines, 1930__ 49 

Sending in of seized vessels 51 

Recent practice and suggestions 52 

Delivery of contraband 54 

Regulations during the World War 56 

Difficulties of delivering cargoes at sea 57 

"Proceed as directed" 58 

Threat by Government agent _ *. 60 

Solution (a), (6), (c), and (d) 61 

Situation III. — Inland state at war 63 

Solution (a), (6), (c), and (d) 64 


Status in time of conflict 64 

War and neutrality 66 

Status of Brazil, 1917 68 

Costa Rica in World War, 1914-18 70 

State without seacoast 71 

World War treaties on flags 71 

Barcelona convention, 1921 72 

Article XIV, Washington Treaty, 1922 73 

Admission of vessels of war 74 

Regulation of entrance of vessels of war 75 

Vessels assimilated to vessels of war 75 

Territorial waters 76 

Internment of the Farn, 1915 78 

Armed merchant vessel 79 

Admission of submarines 82 

American opinion, January 1917 83 

Prize and neutral ports 84 

Brazil in World War, 1914-18 87 

League of Nations and communications 87 

Transport in transit 88 

Transit through the Netherlands, 1918 89 

Navigable waterways 90 


Situation III. — Inland state of war — Continued. 

Notes — Continued. Page 

Aerial navigation 91 

Aircraft over the Straits 91 

Panama Canal 92 

Suez Canal, 1915 93 

Marginal air zone 93 

Brazil and neutrality, 1933 94 

Neutralization of maritime areas 95 

Attitude of United States toward Switzerland 98 

Limiting areas of hostilities 98 

Limits of belligerent rights 100 

Foreign interpretation of national duties 100 

Position of state D 102 

Solution (a), (6), (c), and (d) 103 

Appendixes : 

I. Joint resolution, 74th Congress 105 

II. Statement by President, August 31, 1935 111 

III. Proclamation by President, September 25, 1935. _ 113 

IV. Proclamation by President, October 5, 1935 115 

Index 119 

Situation I 


States X and Y are at war. Other states are neutral. 
This war was declared as from March 16. 

State X has a large merchant marine. The Blue Line 
of steamers runs between state X and state D. This 
line was owned by a citizen of state X till March 1, fif- 
teen days before the declaration of war, when it was sold 
to a citizen of state D. The citizen of state D on March 18 
sells the line to Mr. E, a citizen of state E. 

(a) Vessels of war of state Y on March 20 seize ships 
.of the Blue Line as enemy property. 

(b) Vessels of war of state Y also seize, on March 21, 
on the high sea a cargo of flour on the Dale of the Blue 
Line, which had originally been consigned by a merchant 
of state X to a merchant of state D to be paid for on 
delivery. The flour was shipped on March 15 and on 
March 19, advance payment having been made, title to 
the flour was transferred by telegraph to the merchant 
of D. 

(c) State E announces that if reparation is not imme- 
diately made for both the above acts, it will regard these 
as violations of neutral rights and convoy its merchant 
vessels, giving all convoying commanders orders to pre- 
vent visit and search by vessels of state X. 

(d) State F, considering that neutral rights will not 
be respected, arms its merchant vessels and instructs them 
to permit no submarines to approach except on the sur- 
face, and in case of doubt to endeavor to sink subma- 

How far are all these acts lawful ? 




(a) The seizure of the ships of the Blue Line on 
March 20 as enemy property is not lawful. 

(b) The seizure of the cargo of flour as enemy prop- 
erty on the Dale on March 21 is lawful. The transfer 
by telegraph on March 19 was not a valid transfer as 
against state Y. 

(c) State E has a lawful right to convoy its merchant 
vessels. The right to convoy applies to innocent vessels 
only and does not imply a total denial of the right to 
visit and search. 

(d) The arming of neutral merchant vessels is not 
unlawful though since the London Xaval Treaty of 1930, 
article 22, presumed unnecessary and undesirable. Since 
the treaty of 1930 the order in regard to sinking sub- 
marines would be unlawful for states parties to article 


General. — Either state X or Y, or perhaps both states, 
conforming to international agreements and following 
recent practice has declared war on March 16. Other 
states are neutral. The laws of war and the laws of 
neutrality accordingly are operative from that date. 
Both X and Y are maritime states and X lias a large 
sea-borne commerce. It is natural that the citizens of 
state X should take measures for the protection of their 
property so far as possible. It is also natural that state 
Y should endeavor to meet these measures as far as 
possible. A merchant vessel legally flying a neutral 
flag is not liable to the same treatment as a belligerent 
merchant vessel. Owners of vessels under a belligerent 
flag might transfer such vessels to a neutral flag with 
the object of escaping belligerent liabilities. Owners of 
such vessels might in the exercise of ordinary business 
judgment make a sale of vessels. The purchaser might 
be a neutral in need of vessels and the transaction in- 


volving the change of flag might be of such a nature as 
would take place in time of peace, but a transaction 
which might be entirely valid as between the citizens of 
two states in time of peace might be questioned in time 

of war. 

Pre-war 'period. — There has been an effort, particularly 
during the twentieth century, to limit the effects of the 
war to the period of hostilities and to make this period 
of war definite. This was evident in Hague Con- 
vention III relative to the opening of hostilities which 
in article 12 provided that the existence of a state of war 
should be notified to neutrals and should " not take ef- 
fect in regard to them till the receipt of a notification." 
One of the objects of the Hague conventions was to pro- 
tect international commerce against the surprises of war 
and to limit the effects of war to the period of hostilities. 
Manifestly it is not reasonable that merchants should be 
liable for consequences of the possible outbreak of hos- 
tilities at some period in the indefinite future. Belliger- 
ents should, nevertheless, not be deprived of a reasonable 
right to capture ships which, though under a neutral flag, 
have not been bona fide transferred to the neutral. In 
time of peace a merchant or other person may dispose of 
his property for any reason which seems good to him and 
the property is then liable to such treatment as property 
of like character of nationals of the state of the new 
owner. If the property has not in fact passed from the 
original owner, then it should be liable to the same treat- 
ment as property of like character of other nationals 
of the state of the owner. 

The validity of transfer before the war of property 
from Mr. N, a national of state N having strained rela- 
tions with state M, to Mr. D, a national of state D having 
no concern in these strained relations, would under ordi- 
nary circumstances be presumed. 

Bill of sale by Mr. D. to Mr. E., that is, from one 
neutral citizen to another neutral citizen, may not be on 
board, but would give rise to suspicion only, and the bill 


of sale of a citizen of X to a citizen of D would not be 
expected to be on board. 

Transfers, Crimean War^ 18-5^-56. — During the war 
between Great Britain and Russia several vessels were 
brought before the British courts on suspicion of unlaw- 
ful transfer from Russian to a neutral flag. Several of 
these vessels, though condemned by the lower court, were 
restored by the higher court on the ground u that the 
£ale was bona v<I> : that the property was entirely di- 
vested from the vendor, and vested in the vendee before 
the seizure ; that the transfer was complete, and was not 
a fraud upon any just right of the belligerents." In 
the middle of the nineteenth century it was generally 
considered that any transfer made in time of peace 
which would be a valid transfer from vendor to vendee 
would be valid in case war should subsequently break out 
and the ship should be captured, if the transfer had not 
been made while the ships were in transitu. The reasons 
for rejecting transfers in transitu in the courts of the 
middle of the nineteenth century as stated in the case of 
the Baltica* 1858, were two: 

" The one is, that while the ship is on the seas, the title of the 
vendee cannot be completed by actual delivery of the vessel or 
goods ; the other is, that the ship and goods having incurred the 
x-isk of capture by putting to sea, shall not be permitted to defeat 
the inchoate right of capture by the belligerent powers, until the 
voyage is at an end. 

" The former, however, appears to be the true ground on which 
the rule rests. Such transactions during war, or in contempla- 
tion of war, are so likely to be merely colourable, to be set up 
for the purpose of misleading, or defrauding captors, the diffi- 
culty of detecting such frauds, if mere paper transfers are held 
sufficient, is so great, that the courts have laid down as a 
general rule, that such transfers, without actual delivery, shall 
be insufficient ; that in order to defeat the captors, the possession, 
as well as the property, must be changed before the seizure." 
(11 Moore P. C. 141) 

For many years it had been held that ships transferred 
in transitu in time of war would not thereby be exempted 
from the liability of capture. Xor could vessels be law- 

ATTITUDE IN 19 08 5 

fully transferred from a belligerent to a neutral flag in 
a blockaded port. 

Attitude of maritime states, 1908.— In preparation for 
the International Naval Conference, London, 1908-09, 10 
maritime states were asked to submit their accepted rules 
upon the topics before the conference. One of the topics 
upon which such replies were submitted was that of 
transfer of flag. The replies generally considered trans- 
fers before the outbreak of war as valid unless there was 
evidence of bad faith which might be argued if the trans- 
fer was merely to escape the consequences of the war. 
The problem before the conference as stated in the gen- 
eral report was: 

"An enemy merchant vessel is liable to capture, whereas a 
neutral merchant vessel is spared. It may therefore be under- 
stood that a belligerent cruiser encountering a merchant vessel 
which lays claim to neutral nationality has to inquire whether 
such nationality has been acquired legitimately or for the pur- 
pose of shielding the vessel from the risks to which she would 
have been exposed if she had retained her former nationality. 
This question naturally arises when the transfer is of a date 
comparatively recent at the moment at which the visit and search 
takes place, whether the transfer may actually be before, or after, 
the opening of hostilities. The question will be answered differ- 
ently according as it is looked at more from the point of view 
of commercial or more from the point of view of belligerent 
interests." (1909 Naval War College, International Law Topics, 
p. 121.) 

Articles of the Declaration of London. — After much 
discussion the International Naval Conference formulated 
articles in which transfer of flag of merchant vessels in 
accord with legal requirements of the respective states 
prior to the opening of hostilities would be presumed to 
be valid, though making additional proof necessary if 
the bill of sale was not on board and the transfer was 
made less than 60 days before the opening of hostilities. 
For transfers after the opening of hostilities the pre- 
sumption was that the transfer was invalid, though in 
certain cases proof to the contrary might be entertained. 


In general the aim was to avoid uncertainties by in- 
troducing specific regulations which might be understood 
by those engaged in maritime commerce and would not 
be left to court interpretation or verbal uncertainties 
save in exceptional cases. Such uncertainties were re- 
garded as inevitable when the basis of legality was con- 
sidered as resting on the proof of good faith of the 
parties to the transaction. 

Time eli mertf in transfer. — At the time of the drafting 
of the Declaration of London, the period of 30 days, if 
transfer papers were on board, was regarded as estab- 
lishing the validity of the transfer of a merchant vessel. 

Fifteen days with present rapidity of communications 
may be equally adequate. 

Changing aspects of transfer. — The question as to 
transfer of merchant vessels from a belligerent to a neu- 
tral flag was often raised during the World War. New 
problems and new complications would, of course, arise 
with changing means and methods of transportation and 
communication. In the early period the ownership and 
operation of a vessel by the owner or the partners of the 
owner sharing in the navigation and in the results of the 
venture made a transfer comparatively easy to follow. 
Later, corporate ownership of vessels and the distribu- 
tion of stock in these corporations through many coun- 
tries introduced factors which had to be considered. Fur- 
ther, the distribution and incidence of insurance might 
make the loss or transfer of a vessel a matter of concern 
to other states than those of the vendor and vendee. In 
other words, the transfer of the flag of a vessel of a 
belligerent might be a much less simple transaction than 
formerly, and the belligerents during the World War en- 
deavored to meet some of the problems by new expedients 
and novel statements as to legal rights. 

Rules of transfer in World War. — Several states in en- 
tering the World War issued regulations in regard to 
transfer of vessels which were essentially in accord with 
the rules of the Declaration of London. The German 


ordinance of September 30, 1909, conformed in the main 
features to articles 55 and 56 of the Declaration of Lon- 
don, as did the Japanese regulations of 1914. The in- 
structions for the Navy of the United States, June, 1917, 
provided : 

" 57. The transfer of a vessel from one flag to another is valid 
when completed previous to the outbreak of war in which the 
State of the vendor is a belligerent, provided the transfer is made 
in accordance with the laws of the State of the vendor and the 
State of the vendee." (1925 Naval War College, International 
Law Documents, p. 114) 

" 58. The transfer of a private vessel of a belligerent to a neu- 
tral flag during war is valid if in accordance with the laws of 
the State of the vendor and of the vendee, provided that it is 
made in good faith and is accompanied by a payment sufficient in 
amount to leave no doubt of good faith ; that it is absolute and 
unconditional, with a complete divestiture of title by the vendor, 
and with no right of repurchase by him ; and that the ship does 
not remain in her old employment." (Ibid, p. 116) 

On December 26, 1914, under Argentine general orders, 
it was stated without restriction to any period whether 
before or after war, that : 

" The transfer of colors shall be consented to under reserve 
of its being done upon a basis of absolute good faith, and in the 
knowledge that the Argentine Government will decline all inter- 
vention in behalf of those interested if it should afterwards 
result that they have not fulfilled this condition." (Ibid., 1917, 
p. 30.) 

Others made special rules somewhat dependent upon geo- 
graphical proximity to the belligerents. 

Transfer of the Dacia. — The Dacia, a German mer- 
chant vessel which in late 1914 was unable to make regu- 
lar voyages under the German flag owing to the control 
of the sea by the Allied fleets, was transferred to Amer- 
ican registry. Americans contemplated the purchase of 
other German vessels similarly circumstanced, and con- 
sidered in some cases employing these exclusively between 
British and American ports. 

The original plan of the American shippers was to 
dispatch the Dacia with a cargo of cotton from Galveston, 


Texas, to Bremen, Germany, but on advice of the De- 
partment of State it was decided to send the Dacia to 
Rotterdam. It was agreed that the Dacia should not 
stop at any port hostile to the British, and that it might 
be detained for examination of the cargo at a British 
port. The Secretary of State in a letter of January 13 r 
1915, to the British Ambassador said : 

". . . . I now ask if it is not possible, in view of the particular 
circumstances of this case, for the British Government to consent 
not to raise the question of the transfer of the vessel for this par- 
ticular voyage, it being understood that neither Government yields 
any principle involved and that such action is not to serve as a 
precedent hereafter. The Department is convinced that shipment 
of cotton in this case is in good faith and that shippers took space 
on the Dacia in the belief that the vessel having been transferred 
to the American flag, they could safely ship in the Daciay (For- 
eign Relations, U. S., 1915, Supplement, p. 678.) 

British attitude, early 1915. — While the British atti- 
tude had not been unchanging, in a Memorandum of the 
British Embassy of January 2, 1915, it was stated: 

" The British Embassy has received information as to the re- 
ported purchase of the German ship Dacia, of the Hamburg-Amer- 
ican Line, now lying at Port Arthur, Texas, as a result of the 
outbreak of war, by certain American citizens who have applied for 
the transfer of the ship to the American flag. 

" Further information is to the effect that the purchase price is 
one third the nominal value, the principal purchaser is not by 
occupation an owner of ships, that he is interested in the metal 
trade and that the avowed object of the purchase is to dispatch 
the ship to a German port under the American flag. 

" The circumstances are no doubt under the consideration of the 
competent department of the United States Government. 

" In connection with this matter it becomes the duty of the 
British Embassy to point out that while it has been the British 
and American rule, under certain conditions, to accept as valid 
the transfer of vessels from a belligerent to a neutral flag after 
the declaration of war, it has also been the rule that such trans- 
actions justify the strictest enquiry on the part of the belligerent. 
This enquiry has been in the past based upon the nature of the 
purchase, the character and occupation of the purchaser, the com- 
position of the crew, and above all the business on which the ship- 
is engaged before and after the transfer. 


" These considerations will no doubt be familiar to the State 
Department but in order to prevent any possible misunderstanding 
the British Embassy takes this opportunity to point out that His 
Majesty's Government must reserve its rights as to the recognition 
of the validity of the transfer of the flag under these and similar 

Cecil Spring Rice." 
(Ibid., p. 674.) 

Soon the exigencies of the World War and particularly 
the case of the Dacia gave rise to questions in new forms. 
The British Ambassador in Washington in a note to the 
American Secretary of State on January 12, 1915, gave 
a somewhat full statement: 

" Dear Mr. Secretary : You ask me what is the attitude of my 
Government with regard to the transfer of the flag after the 
outbreak of hostilities. I beg to state in reply that I have not 
received any detailed instructions from my Government on this 
question although in general they propose to follow the principles 
laid down in the Declaration of London. 

"As however they have not ratified the declaration it may be 
argued that in considering the question they must be guided by 
the principle which (in common with your Government) they 
have professed in times past. These principles are, as you are 
aware, that the absolute prohibition of sales of ships during 
hostilities would be too severe a measure for a commercial nation, 
although such sales must always be regarded with suspicion. It 
has, I believe, been generally held that the validity of the sale 
is judged by its commercial character ; the purchaser must prove 
a bona-fide sale and in general the ship must not be used to serve 
enemy purposes under a neutral flag. 

" So far, I understand, 111 vessels, formerly foreign, have re- 
ceived American registry since the war began and of these 86 
were British and 17 German. 

" My Government has hitherto let such transfers pass without 
protest in cases where the vessel was bona fide owned by an 
American company before the war, so that the transfer does not 
involve a sale, and where the vessel does not carry an enemy 
crew and is not employed in carrying supplies to an enemy or to 
a neutral port which is used for supplying an enemy. Cases 
where the vessel was originally owned by a non-American owner 
are regarded with suspicion because of the possibility that the 
transfer of the flag is resorted to for unneutral purposes. In the 
case of the Sacramento in San Francisco, a transferred ship was 
4448—36 2 


collusively seized by a German cruiser and emptied of her stores 
of coal for belligerent use. The Dacia has been sold by a German 
company to a German-American for one third her value and is 
reported to be destined to a German port. The Stoya Romano, 
was a Roumanian ship which received American registry in the 
port of Bremen ; has cleared from that port, nominally for Amer- 
ica, but has not so far as I know yet arrived here. If loss or 
damage results to Great Britain as a consequence of the trans- 
fer of these ships it is to be presumed that a claim will be made 
against the United States Government. 

" But cases must arise in which the transfer of the flag is of 
a purely commercial character and the purchase effected with- 
out any but commercial objects. It has not I believe been the 
rule to contest the validity of the transfer if the hona fides of the 
sale is proved and if the ship when she changes her owner is 
employed with a neutral crew in neutral trade and between 
neutral ports. 

" The German Government has declared that it would with- 
draw its objections to the transfer of a ship from an enemy to 
the American flag in cases where the ship traded exclusively 
between America and Germany. I think it not improbable, though 
1 do not write under instructions, that my Government would 
raise no further question if a transferred ship were to trade 
between any ports not serving as ports of supply to the enemy. 

'■ There is however the further question of the liberation of 
interned ships as a consequence of transfer. That is the question 
as to whether a neutral performs an unneutral act if in the 
course of the war he releases a belligerent from the consequences 
of military operations. This question is of course both difficult 
and complicated and no doubt, should the occasion arise, would 
become the subject for discussion. 

"I am (etc.) Cecil Spring Rice." 

(Ibid., p. 676.) 

This note introduces a proposition indicating that 
there is a responsibility resting upon a neutral state to 
intern belligerent merchant vessels, and if these depart 
there may be a claim against the neutral state. Such a 
novel proposition would certainly open questions which 
would be " both difficult and complicated " and would 
also be without any sound basis of reason in international 

The case of the Dacia became in some respects a test 
se, and was stated in a communication from the Secre- 


tary of State to the American Ambassador in Great 
Britain on January 14, 1915, as follows : 

" German steamship Dacia recently transferred to American 
register due to sail from Galveston with full cargo cotton Friday 
or soon thereafter as possible. Owners have contemplated voyage 
to Bremen. Upon Department's suggestion owners of ship and 
cargo consent to send ship to Rotterdam direct with entire cargo 
of cotton which is sold for delivery in Germany by day certain. 
Shippers took space on Dacia after American registry in good 
faith, believing they could safely ship. Officers and crew entirely 
native American citizens. Vessel will go direct to Rotterdam, 
not touching at any enemy port, and return this country, agreeing 
to detention for examination of cargo. No other bottoms avail- 
able for cotton and shippers threatened with disastrous loss if 
unable to use Dacia. Ship bought for half price due to natural 
causes from German ships lying idle. Please call on Grey at 
once and lay this situation before him in person and seek to have 
British Government consent not to raise question of transfer for 
this particular voyage on conditions above stated, neither Gov- 
ernment waiving any principle involved and case not to serve as 
precedent hereafter. If arrangement consummated, Department 
will issue statement that arrangement is agreed to by Great Brit- 
ain to facilitate this shipment of cotton and case not to serve 
as precedent and all prospective transferees of enemy vessels will 
be so advised. Freight rates on cotton are now practically pro- 
hibitive. Under recent restrictions of British Government, Eng- 
lish ships practically denied transfer of register. Parties who 
purchased Dacia state they endeavored purchase British and 
French ships without success. Report earliest possible moment. 

<Ibid., p. 678.) 

While the British authorities replied that they would 
be willing to purchase the cargo of the Dacia, if brought 
to a British port, at the price it would realize at the Ger- 
man destination, the ship itself if coming under British 
authority would be brought before a prize court. 

The British mentioned the sale of such ships as the 
Dacia as in effect " the liberation of interned ships during 
the course of hostilities." 

The argument as presented by the British Secretary of 
State for Foreign Affairs is repeated by the American 
Ambassador in a communication of January 18, 1915: 


"... My inquiry whether British Government would ohject to 
purchase and transfer of German interned ships to ply between 
American and British ports brought from Sir Edward Grey the 
most ominous conversation I have ever had with him. 

" He explained that the chief weapon that England has against 
any enemy is her navy and that the navy may damage an enemy 
in two ways : By fighting and by economic pressure. Under the 
conditions of this war economic pressure is at least as important 
as naval fighting. One of the chief methods of using economic 
pressure is to force the German merchant ships off the seas. If, 
therefore, these be bought and transferred to a neutral flag this 
pressure is removed. 

" He reminded me that he was not making official representations 
to the United States Government and for that reason he was the 
more emphatic. If the United States without intent to do Great 
Britain an injury, but moved only to relieve the scarcity of ton- 
nage, should buy these ships it would still annul one of the vic- 
tories that England has won by her navy. He reminded me of 
the fast-rising tide of criticism of the United States about the 
transfer of the Dacia and he declared that this has intensified and 
spread the feeling against us in England on account of ouc note 
of protest. He spoke earnestly, sadly, ominously, but in the friend- 
liest spirit . . . They (the English) regard the Dacia as a German 
ship put out of commission by their navy. She comes on the seas 
again by our permission which so far nullifies their victory. If she 
comes here she will, of course, be seized and put into the prize 
court. Her seizure will strike the English imagination in effect 
as the second conquest of her — first from the Germans and now 
from the Americans. Popular feeling will, I fear, run as high as 
it ran over the Trent affair ; and a very large part of English opin- 
ion will regard us as enemies. 

" If another German ship should follow the Dacia here I do not 
think that any government could withstand the popular demand 
for her confiscation ; and if we permit the transfer of a number 
of these ships there will be such a wave of displeasure as will make 
a return of the recent good feeling between the two peoples im- 
possible for a generation. There is no possible escape from such 
an act being regarded by the public opinion of this Kingdom as a 
distinctly unfriendly and practically hostile act." (Ibid., p. 682.) 

On January 23, 1915, the President directed a reply to 
some of the notes recently received from the American 
Ambassador in Great Britain. This note pointed out 
some of the causes of irritation which British action 


might cooperate in removing. Referring particularly to 
the Dacia, he said : 

" The Dacia case has received a great deal of newspaper notoriety 
because of predictions as to what would be done with her. Brei- 
tung, seeing that there was a chance to profit by the high freight 
rates, decided to buy a ship. He first tried to buy an English ship 
and then a French ship but, as his correspondence shows, he failed 
to secure a ship from either country. He then bought the Dacia, 
paying for it about three fourths of what it cost fourteen years 
ago when it was built. He secured a cargo of cotton and intended 
to sail for Bremen. When he was informed that it would be wiser 
to go to Rotterdam he changed the route and planned to sail to 
Rotterdam. The inquiries which have come to the State Depart- 
ment have come from the owners of the cotton, rather than from 
the owner of the ship. The Government has had nothing to do with 
the transaction further than to make inquiries for interested parties. 
Whether the ship is taken into the prize court or not is a question 
between the British Government and the owner of the ship, but, if 
it is taken into the prize court the court will of course decide upon 
the evidence produced and so far as we know the evidence will 
support the bona fides of the transactions. If the evidence shows 
that the sale was made in good faith, the transfer cannot be ob- 
jected to according to the rules recognized by both Great Britain 
und the United States. A change in these rules at this time could 
not be made by the United States and it would seem to be an in- 
opportune time for Great Britain to change them. Great Britain 
fears that the Dacia might be made a precedent and that other 
German interned ships would be bought in case the Dacia sale was 
not contested. That is true and yet the precedent would only stand 
in case the sales were bona fide in which case they would come 
within the rules. The chief point presented in your despatch is 
that Great Britain is trying to bring pressure to bear upon Ger- 
many by preventing the sale of interned German ships. This is 
perfectly legitimate so long as the pressure is exerted according to 
the international law, but the pressure becomes illegitimate if well- 
settled rules are violated, and a well-settled rule would be violated 
if an attempt was made to prevent a bona fide sale. 

" The point which should be made very clear to the British 
authorities as our view and purpose in the whole matter, if such 
purchases are made, is that as a matter of actual fact such pur- 
chases do not constitute a restoration of German commerce to the 
seas. Such ships would not and could not be used on the former 
routes or with the former and usual cargoes and would serve as 
German commerce in no particular. They would serve only the 


trade of the United States with neutral countries and within the 
limits necessarily set by war and all its conditions. The with- 
drawal of so many ships from the seas is so far a curtailment of 
the commerce of the United States. The United States cannot in 
the circumstances sell articles to Germany which the rules of war 
or the circumstances now existing forbid. The owners of the 
ships bought from German owners cannot use them on the routes 
or to the ports which would serve their former owners as the 
carriers of German commerce. They would be used on new routes 
and for the release of American merchandise to new ports. They 
would represent an extension of American commerce, not a 
renewal of German. This cannot be justly or even plausibly 
regarded as an effort to relieve the present economic pressure 
on Germany or to recreate anything that Great Britain had a 
right to destroy. America must have ships and must have them 
for these uses. She will build them if she cannot find them for 
sale. The legitimate restoration of American commerce may be 
delayed but it cannot be prevented. It cannot be part of the 
purpose of the British Government to put an intolerable economic 
pressure on the United States, as might very easily be the result 
if its attitude as reflected in your note is maintained." (Ibid^ 
p. 685.) 

The American Ambassador in Great Britain seemed 
to see more than the legal and political aspects of the case 
and said. " I cannot exaggerate the ominousness of the 
situation. The case is not technical but has large human 
and patriotic and historic elements in it." (Ibid., p. 683.) 
The American Ambassador in his communication to the 
Secretary of State seemed even more concerned than the 
British Embassy had been on January 2, 1915, when in 
stating the British view upon transfer the legal attitude 
had been under consideration. In the early British com- 
munication in regard to the Dacia, there had been no sug- 
gestion that neutrals assumed responsibility for intern- 
ment of merchant vessels or that they might not remain 
indefinitely and be the subject of mercantile transactions, 
and, liable to usual laws of prize, depart under any flag. 

French attitude, early 1915. — Questions had arisen in 
regard to transfer of vessels which, because oi practical 
certainty that they would be captured if they went to sea, 
were still in neutral ports. The French Government had 


indicated, in 1908-09, that it was in substantial accord with 
the view of the United States as expressed at the London 
Naval Conference, but that vessels tied up in neutral ports 
because of risk in going to sea were not in the categories 
under consideration. Of these vessels the French Am- 
bassador in a letter to the American Secretary of State, 
January 16, 1915, said : 

" My Government wishes your excellency's kind attention, which, 
is known to be devoted to international justice, to be called anew 
to this problem. It trusts that you will readily admit that the 
contingency of flag transfers about which we cannot but be con- 
cerned and in which we could not acquiesce without breaking our 
own laws publicly announced even in time of peace, would, if it 
came to pass, be tantamount to supplying our enemies with finan- 
cial means for carrying on the war and for escaping the conse- 
quences of the command of the sea gained by the Allied fleets, not 
without battles and losses. It appears no exaggeration to say 
that, in case a contingency so harmful to my Government's inter- 
ests should, contrary to its firm hopes, become a reality, the pur- 
chase of German merchant ships in their present tied-up condition 
would amount to an act of assistance to our enemies. We take 
the proclamations of the President of the United States, as stated 
in my previous communication, to be a safe guaranty that he could 
not wish any such harm done to our country by his. 

"Be pleased (etc.) Jusserand" 

(Foreign Relations, U. S., 1915, Supplement, p. 681.) 

On February 16, 1915, the Ambassador of France in 
Washington addressed a communication to the Secretary 
of State of the United States in regard to transfer of 
American-owned vessels sailing under a foreign flag and 
to be transferred to the American flag. 

" Me. Secretary of State : Referring to the communications 
which I have previously had occasion to make to your excellency 
on the subject of vessels sailing under a foreign flag but owned 
by Americans, which may be transferred to the American flag by 
virtue of the act of August 18, last, I have the honor to inform 
you that my Government wishes to make it clear that our recog- 
nition of such a transfer is to be understood in the sense herein- 
below stated, which, as your excellency will acknowledge, is in 
conformity with logic and practiced rules ; 

" 1. The recognition of a transfer effected under the above- 
stated conditions presupposes, of course, that the transaction is 


bona fide and that the vessel is not to be under the direction or 
in the service of enemy interests either before or after the 

" 2. Reliable reports which have reached the Government of 
the Republic show that the German Government has refused to 
recognize such transfers except when the vessels concerned were 
to serve German interests. The principle of equality which gov- 
erns the relations between neutrals and belligerents prevents the 
Allied Governments from respecting, in such case, any trade that 
might be carried on with Germany under the American flag as 
long as that power does not, for its part, respect trade carried on 
with the Allied countries under absolutely similar conditions. 

" 3. Recognition of the transfer to the American flag of an 
enemy vessel under the special circumstances accepted by the 
Allied Governments may not and must not, by reason of the fore- 
going, he taken for granted and effective except when the vessel 
availing itself of it does not actually serve enemy interests by 
sailing or trading for the account of an enemy country. 

"4. It is important to note that subjects of an enemy country 
who may be kept in the crew of the vessels transferred to the 
American flag would be liable to arrest as being subject to 
military service, in accordance with the decision jointly reached 
by the French and English Governments which was made public 
through insertion in the Journal officiel de la R&publique fran- 
caise of the 3d of November last." " Jusserano." (Ibid., p. 690. ) 

The Russian Ambassador had, a few days previously, 
informed the Secretary of State that the Russian Gov- 
ernment adhered to the French position. 

Decision in case of the Dacia. — The Dacia was captured 
by the French auxiliary cruiser Europe on February 27, 
1915. The Dacia was brought before the Consul des 
Prises and the decision was rendered August 3-5, 1915. 
The decision referred to the provisions of the Declara- 
tion of London and many other documents, but finally 
pronounced the Dacia good prize: 

" Decide : 

11 Est declaree bonne et valable la capture du vapeur Dacia, en- 
semble ses agres, apparaux, armement et approvisionnements de 
route nature, effectuee le 27 fevrier 1915 par le croiseur auxiliaire 
de la Republique Europe, pour le prix en etre attribue aux ayants 
droit conformement aux lois et reglements en vigueur ; 


" Seront restitues aux ayants droits les objets et effets, pro- 
priety personnelle du capitaine et de l'equipage, et ne constituant 
pas des articles de contrebande." 

(1922 Naval War College, International Law Decisions, p. 37; 
[1916] Decisions du Conseil des Prises, p. 180.) 

Corporate ownership. — The liability of a merchant ves- 
sel to capture may in the case of ownership by a corpora- 
tion depend upon the nationality of the actual owners 
and their relation to the employment of the vessel. Such 
was the condition in the case of the Hambom, belonging 
to a company incorporated before the World War under 
the laws of the Netherlands though the control was 
wholly in German nationals and questions of Dutch law 
and international law were involved. This vessel was 
captured and brought before the British prize court where 
it was condemned, December 12, 1917 ([1918] p. 19.) 
The case on appeal came before the Judicial Committee 
of the Privy Council which sustained the prize court 
decision and said: 

" If the case turned on her user de facto at the time of capture 
it would be simple : so it would be, if her owners were natural 
persons of neutral nationality de jure, neither adhering to the 
enemy nor allowing their chattel to be used in enemy service. 
The present case is more complex. The criteria for deciding 
enemy character in the case of an artificial person differ from 
those applicable to a natural person, since in the nature of things 
conduct, which is one of the most important matters, can in the 
former case only be the conduct of those who act for or in the 
name of the artificial person. It was decided in the case of The 
Daimler Company, Limited v. The Continental Tyre and Rubber 
Company {Great Britain), Limited, that, in the case of an incor- 
porated company, the right and power of control may form a 
true criterion, the control, that is, of those persons, who are the 
active directors of the company and whose orders its officers must 
obey, or the control of those persons, who in their turn are the 
masters of the directorate and make or unmake it by the use 
of the controlling majority of votes. The application of this test 
presents no difficulty here, for no living person and no sentient 
mind exercised or possessed any control over the Hamborn Steam- 
ship Company except persons and minds of enemy nationality. 
The residence of the two German managers in Rotterdam if not 


altogether immaterial, at any rate cannot affect the result, since 
the question is not one of trading with enemy subjects, resident 
or carrying on business in a neutral country, but is one of the 
character of an artificial persona, whose trade is carried on for 
it under the supreme direction and control of enemies born. 
Their Lordships agree with a passage of the President's judgment, 
which sufficiently represents the true gist of his reasoning : 

" ' The centre and whole effective control of the business of the 
Kotnborn Steamship Company was in Germany. Having regard 
to these facts, the vessel must be regarded in this Court as be- 
longing to German subjects,' 

in a claim by captors for condemnation." ([1919] A. C. 993.) 

Abrogation of Article 57, Declaration of London. — 
Article 57 of the Declaration of London read : 

" Subject to the provisions respecting the transfer of flag, the 
neutral or enemy character of a vessel is determined by the flag 
which she has the right to fly. 

" The case in which a neutral vessel is engaged in a trade which 
is reserved in time of peace, remains outside the scope of. and 
is in no wise affected by, tlr's rule." (1909 Naval War College, 
International Law Topics, p. 131.) 

This article aimed to safeguard the rights of belliger- 
ents and of neutrals and recognized the difference be- 
tween ownership of ships and ownership of cargoes. 
The understanding was set forth in the general report, 
presented to the conference on behalf of the drafting 
committee, which said: 

" The principle, therefore, is that the neutral or enemy char- 
acter of a vessel is determined by the flag which she has the right 
to fly. It is a simple rule which appears satisfactorily to meet 
the special case of ships, as compared with other movable prop- 
erty, and especially with merchandise. From more than one 
point of view, ships have a kind of individuality ; especially they 
have a nationality, a national character. This nationality is 
manifest in the right to fly the flag ; it places the ships under the 
protection and control of the State to which they belong : it 
makes them amenable to the sovereignty and to the laws of that 
State, and, should the occasion arise, to requisition. This is the 
surest test of whether a vessel is really a part of the merchant 
marine of a country, and therefore the best test for determining 
whether she is neutral or enemy. It is, moreover, expedient to 


rely exclusively upon this test, and to discard whatever is con- 
nected with the personal status of the owner. 

" The text mentions : the flag which the vessel has the right 
to fly; that means, naturally, the flag which, whether she is 
actually flying it or not, the vessel has the right to display 
according to the laws which govern the port of the flag." (Ibid., 
p. 131.) 

This article 57 had been operative during the early 
part of the World War and had in general seemed sat- 
isfactory, but after discussions upon the Dacia and other 
transfers, the British and French Governments gave no- 
tice of the abrogation of article 57 and the British Order 
in Council of October 20, 1915, also stated that, " In lieu 
of said article, British prize courts shall apply the rules 
and principles formerly observed in such courts." 

The French explanation of its attitude in annulling the 
rule that the " neutral or enemy character of a vessel is 
determined by the flag which she has the right to fly " 
is stated somewhat definitely in a report to the President 
of the Republic. 

" Paris, October 23, 1915. 

" Sir : Among the rules of international maritime law, formu- 
lated by the declaration signed at London February 26, 1909, 
which was not ratified, but which is being actually applied by 
the decree of November 6, 1914, during the present war with 
certain reservations, consisting in some additions and modifica- 
tions, the ruling inscribed under Article 57 of this declaration es- 
tablishes an absolute presumption of the neutral or enemy char- 
acter of vessels according to the flag the vessel has a right to 

" Experience has proved that such a strict rule is in practice 
capable of leading to inexact solutions. It may happen that for 
commercial purposes, during a time of peace, vessels were regu- 
larly registered under a flag which has become an enemy one by 
reason of the war, while in reality the interests vested in the 
ownership of these vessels belong to nationals of a third country 
whiqh may be neutral or Allied. Conversely vessels registered 
under a neutral flag may as a matter of fact represent enemy 

" The reunion of capital in the form of societies renders these 
combinations particularly easy to realize thanks to the real per- 
sonality, legally capable of holding property, and to the nationality 


which the law recognizes and accords to societies independently 
of the personality or the nationality of the individuals who own 
interests in it. 

11 One of the objects which a belligerent may legitimately pursue 
on the high seas according to international law is to annihilate 
by capture the mercantile marine of the enemy. If by attacking 
neutral interests represented by a vessel registered under the 
enemy's flag the belligerent deviates from the aforementioned aim 
and finds himself accused of violating the liberty of neutral com- 
merce, his right to act legitimately is directly injured by the em- 
ployment of registration under a neutral flag covering enemy 
interests with a protection which nothing justifies. 

11 If these views, which have also struck our Allies, appear to you 
to be well founded, I have the honor to submit for your approba- 
tion the following draft of a decree. 

Rene Yiviani, 
The President of the Council and 

Minister for Foreign Affairs. 
Victor Augagneub 
The Minister of Marine. 

(Foreign Relations, U. S., 1915, Supplement, p. 180.) 

The purpose of the annulment of article 57 by the 
Allied Powers was to enable the prize courts to look be- 
yond the right to fly the flag to the actual ownership of 
the vessel which might be a corporation, the stock of 
which was for the most part enemy- rather than neutral- 
owned. That the owner should bear the legitimate risk 
of loss in case of capture seemed a logical conclusion, and 
ownership which might in time of peace be advantageous 
to all, might in time of war, if carried by a neutral flag, 
escape such liability. British subjects who owned vessels 
or shares in vessels under neutral flags had realized the 
liabilities. Even though this might be the situation in 
regard to belligerent ownership and even though article 
57 of the Declaration of London might not be operative, 
this did not imply that belligerent merchant vessels re- 
maining in neutral ports for whatever reason were ipso 
facto " interned ", in the technical meaning of that term, 

as some of the communications had implied. 
Internment. — For maritime relations the doctrine of 

internment was comparatively recent, applied particu- 


larly during and since the Russo-Japanese War, 1904r-05. 
Internment implied a detention of a vessel of war in a 
neutral port pending some agreement as to its disposi- 
tion. The neutral authorities assumed reasonable re- 
sponsibility for the maintenance of this detention. The 
belligerent vessel of war might be detained at a naval 
station, the crew might be similarly detained, and the 
officers were usually placed on parole. Sometimes essen- 
tial parts of the machinery and of the guns were re- 
moved from the vessel. Vessels of war of a belligerent 
were ordinarily permitted to remain in a neutral port 
only 24 hours without becoming liable to internment. 

No such restrictions rested upon belligerent merchant 
vessels in neutral ports. These vessels could, so far as 
the neutral was concerned, go and come at pleasure sub- 
ject to the usual commercial restrictions. If a merchant 
vessel of a belligerent preferred to remain in port rather 
than to depart, there was no law or custom to the con- 
trary. There was no 24-hour rule of sojourn. 

Transfer of goods in transitu. — From early days of 
maritime trade transfer in time of peace of goods in 
transitu was a common and well recognized practice. 
It was sometimes maintained : 

" that a mere delivering of the bill of lading is a transfer 
of the property ;" * * * " When war intervenes, another 
rule is set up by Courts of Admiralty, which interferes with 
the ordinary practice. In a state of war, existing or immi- 
nent, it is held that the property shall be deemed to continue 
as it was at the time of shipment till the actual delivery; 
this arises out of the state of war, which gives a belligerent 
a right to stop the goods of his enemy. If such a rule did 
not exist, all goods shipped in the enemy's country, would be 
protected by transfers which it would be impossible to detect. 
It is on that principle held, I believe, as a general rule, that 
property cannot be converted in transitu; and in that sense 
I recognize it as the rule of this Court. But this arises, as 
I have said, out of a state of war, which creates new rights 
in other parties, and cannot be applied to transactions orig- 
inating, like this, in a time of peace. The transfer, therefore, 
must be considered as not invalid in point of law, at the 


time of the contract ; and being made before the war. it must 
be judged according to the ordinary rules of commerce.'* 
(The Vrow Manjaretha (1799), 1 C. Robinson Reports, 336.) 

This transfer in transitu having taken place before the 
war and without intention to avoid the consequences of 
the w r ar was valid. The burden of proof of liability to 
capture in cases of transfers in transitu rests upon the 

If a transfer in transitu was made because of the im- 
minence of the war, the sale was regarded as invalid by 
the captor of the goods. Sir William Scott in 1804 in 
the case of the Jan Frederick said : 

11 The motive may indeed be difficult to be proved — but that will 
be the difficulty of particular cases : Supposing the fact to be 
established, that it is a sale under an admitted necessity, arising 
from a certain expectation of war; that it is a sale of goods not 
in the possession of the seller, and in a state where they could 
not, during war, be legally transferred, on account of the fraud 
on Belligerent rights ; — I cannot but think that the same fraud is 
committed against the Belligerent, not indeed as an actual Bellig- 
erent, but as one who was, in the clear expectation of both the 
contracting parties, likely to become a Belligerent, before the 
arrival of the property, which is made the subject of their agree- 
ment. The nature of both contracts is identically the same, being 
equally to protect the property from capture of war — not indeed 
in either case from capture at the present moment when the con- 
tract is made, but from the danger of capture, when it was likely 
to occur. The object is the same in both instances, to afford a 
guarantee against the same crisis: In other words, both are done 
for the purpose of eluding a Belligerent right, either present or 
expected. Both contracts are framed with the same animo 
fraudandi, and are, in my opinion, justly subject to the same rule." 
(The Jan Frederick (1804), 5 C. Robinson Reports, 128.) 

In this case Sir William Scott also says " the same rule 
of law is to be applied to such contracts in transitu^ made 
in anticipation of war, as are applied to similar contracts 
in time of actual hostilities." It has been maintained 
that the element which invalidates the transfer is the 
" attempt to defeat the rights of belligerent captors." 
(The Southfield [1915], 1 B. & C. P. C, p. 332.) Refer- 


ring in this case to " contemplation of war " and to war 
as " imminent ", Sir Samuel Evans said in its proper 
meaning imminent is " threatening or about to occur." 

In the extended opinion in the case of the Kronprin- 
zessin Margaret a, the Parana, etc., among other pro- 
nouncements, it was laid down in 1920 that : 

" The rule against recognizing transfers of enemy goods while 
at sea, if unaccompanied by actual delivery and transfer of posses- 
sion, is so well established and is now so ancient that its authority 
cannot be questioned or its utility impugned for the purposes of a 
judicial determination. Its application assumes that the circum- 
stances of the shipment, and the dealings with the shipping docu- 
ments and otherwise, are not such as to make the shipment itself 
an actual delivery of the goods to the transferee through his agent 
the carrier. It assumes also that a documentary transfer has 
taken place in good faith by a real and not a sham transaction, 
and that in pursuance of that transfer rights have been acquired 
by the transferee, which in other Courts not bound by such a rule 
would be valid and enforceable. With sham transactions Courts 
of Prize would deal in another fashion ; with incomplete trans- 
actions insufficient to transfer rights, no Court would deal at all. 
The expression ' mere paper transaction ', sometimes used, does 
not imply that something unreal or ineffectual in itself is under 
discussion. It serves to draw attention to the fact that the trans- 
action is unaccompanied by any dealing with the goods themselves, 
such as by its overt or notorious character would serve to inform 
the captor as to the subject which he seizes and the nature of the 
right, if any, which he may be entitled to acquire in consequence.'* 
(1 A. C. [1921] 486.) 

Convoy. — The Naval War College carried on a discus- 
sion upon the subject of convoy in 1911 soon after the 
publication of the unratified Declaration of London. 
This discussion was with view to calling attention to 
some of the existing special treaty provisions in regard to 
protection of neutral vessels. The right of convoy has 
been a subject of controversy for nearly 300 years 
and the applicability of convoy as a right remains 
undetermined. In the War College discussion of 1911, it 
was shown that there seemed to be a tendency to accept 
convoy as a right. Great Britain had generally opposed 


though occasionally by treaty had agreed to the practice, 
and in the British Admiralty Manual of Prize Law of 
1888 had asserted in regard to visit and search, 

M No vessel is exempt from the exercise of these powers on the 
ground that she is under the convoy of a neutral public ship." 

In the memorandum setting forth the British views in 
preparation for the London Naval Conference of 1908-09, 
it was said: 

" 7. A neutral vessel is not entitled to resist the exercise of the 
right of search by a belligerent war-ship on the ground that she is 
under the convoy of a war-ship of her own nationality ; forcible 
resistance by her or by the neutral war-ship to the exercise of the 
right of search is ground for condemnation of both ship and cargo." 
(Correspondence and Documents respecting the International Na- 
val Conference. Misc. No. 4 (1909), Cd. 4554, p. 4.) 

In support of this position, citations were given to the 
case of the Maria, 1799 (1 C. Robinson Reports, 340), and 
the Etsabe (4 C. Robinson Reports. 408). 

Sir Edward Grey in his letter to Lord Desart, the 
British Plenipotentiary, however, said : 

" 18. The question of the right to visit, search, and seize neutral 
ships when under convoy is one on which there has been a clear 
divergence between the old continental system and the British doc- 
trine. That doctrine has however not been enforced in any recent 
war. In 1854 the right to visit ships under convoy was specifically 
waived, owing to the difficulty inherent in naval co-operation with 
an allied Power which did not recognize that right. Nor have 
His Majesty's Government since attempted to exercise it. The 
situation was radically changed by the Declaration of Paris, which 
put an end to the right formerly enjoyed, of seizing enemy goods 
other than contraband, under whatever flag carried, and His 
Majesty's Government are now desirous of limiting as much as 
possible the right to seize for contraband, if not eliminating it 
altogether. In proportion as the lists of contraband are reduced — 
and there is good ground for hoping that this will be successfully 
done in a large measure — the value of the right to seize for contra- 
band automatically diminishes. Whilst accordingly, on the one 
hand, the importance to a belligerent of the right to seize vessels 
under convoy has lost most of its value, the principle of exemption 
is, on the other hand, favourable to neutral trade, and in con- 
formity with the spirit of British policy. This is therefore one of 


the cases where, owing to the force of changing circumstances, 
the original British contention has practically lost its importance, 
so that its specific abandonment would effect no substantial altera- 
tion in the actual situation, and may very well be admitted to be 
little more than the formal acknowledgment of a now generally 
accepted rule." (Parliamentary Papers, Misc. No. 4, International 
Naval Conference. (1909), Cd. 4554, p. 25.) 

Declaration of London on convoy. — While there were 
differences of view among the 10 naval powers participat- 
ing in the International Naval Conference of 1908-09, 
the conciliatory attitude of Great Britain made agree- 
ment upon the question easier than had been expected 
and agreement occasioned much satisfaction to the Con- 
ference. This was particularly true because many states 
had treaties according respect to convoys. The treaties 
between Continental European states and American 
states generally recognized the right of convoy. 

Article 61 of the Declaration of London was as 
follows : 

" Neutral vessels under convoy of their national flag are exempt 
from search. The commander of a convoy gives, in writing, 
at the request of the commander of a belligerent ship of war, all 
information as to the character of the vessels and their cargoes, 
which could be obtained by visit and search." (1909 Naval War 
College, International Law Topics, p. 139.) 

of this article the general report says: 

" If neutral Governments allow belligerents to visit and search 
vessels sailing under their flag, it is because they do not wish 
to assume the responsibility for the supervision of such vessels, 
and therefore allow belligerents to protect themselves. The sit- 
uation changes when a neutral Government consents to assume 
that responsibility; the right of visit and search has no longer 
the same ground. 

"But it follows from the explanation of the rule given re- 
specting convoy that the neutral Government undertakes to give 
the belligerents every guarantee that the vessels convoyed shall 
not take advantage of the protection which is accorded to them 
in order to do anything contrary to neutrality, for example, to 
carry contraband of war, to render unneutral service to the 
belligerent, to attempt to violate blockade. " * * * 
4448—35 3 


"A written declaration is required, because it prevents all am- 
biguities and misunderstandings, and because it binds more fully 
the responsibility of the commander. This declaration has for its 
aim to make visit and search unnecessary by the mere fact that 
this would afford to the cruiser the information which the visit 
and search itself would have supplied." (Ibid., p. 139.) 

In order that the commander of the visiting vessel 
may be even more secure in his opinion as to the inno- 
cence of the vessels under convoy, article 62 provided : 

11 If the commander of the belligerent ship of war has reason 
to suspect that the confidence of the commander of the convoy 
has been abused, he communicates his suspicions to him. In such 
a case it is for the commander of the convoy alone to conduct an 
investigation. He must state the result of such investigation in 
a report, of which a copy is furnished to the officer of the ship of 
war. If, in the opinion of the commander of the convoy, the 
facts thus stated justify the capture of one or more vessels, the 
protection of the convoy must be withdrawn from such vessels." 
(Ibid., p. 141.) 

If the commander of the visiting cruiser is not then 
satisfied, he may protest and there would be resort to dip- 
lomatic settlement. If the convoying commander with- 
draws his protection the merchant vessel cannot complain 
because " She has deceived her own Government, and has 
tried to deceive the belligerent." 

Of this Article the report of the British Delegates to 
Sir Edward Grey said : 

" In pursuance of the directions contained in section 18 of our 
general instructions, we intimated to the Conference that Great 
Britain was willing to recognize the immunity from visit and 
search of neutral vessels under convoy, as one of the now gener- 
ally accepted principles of international law. This attitude on our 
part naturally smoothed the way for the adoption of the rules com- 
prised in chapter VII of the Declaration. Some controversy arose 
as to the procedure to be prescribed in cases where it was found 
that the officer commanding the convoy had been deceived, and that 
contraband was in fact carried on board a vessel or vessels under 
his convoy. The solution adopted, as embodied in article 62, vin- 
dicates in every respect the freedom from belligerent interference 
of the convoying officer. It is he who alone is to investigate any 
allegations made against a particular vessel or vessels forming 


part of his convoy, and only if he is satisfied of their truth is he 
called upon to withdraw his protection from the offending vessels. 
These provisions seem to us to be the logical deductions to be 
drawn from the principle of immunity if once admitted, and we 
therefore agreed to them. It may be well to point out that any 
failure on the part of the commander of the convoy to carry out 
the obligations imposed upon him under Article 62 could not be 
redressed by resort to the International Court, which would have 
no jurisdiction in such a matter. The injured belligerent would 
have to seek his remedy by way of diplomatic representation." 
(Parliamentary Papers, Misc. No. 4, International Naval Confer- 
ence (1909), Cd. 4554, p. 100.) 

As the British Government seemed to have in 1909 
taken the position in regard to convoy that generally pre- 
vailed, the question was considered practically settled 
and rules in regard to naval warfare were drawn accord- 

Attitude of the United States in 191Jf. — In reply to a 

question raised in early August 1914 as to whether the 
United States would " look with favor on furnishing 
escorts for fleets of grain-carrying steamers destined for 
France ", the Secretary of State said : 

" Department of State, 
Washington, August 8, 191 J f . 
Referring to telegram from Wichita Mill and Elevator Com- 
pany, wheat and provisions are classed as conditional contraband 
cf war under generally accepted principles of international law, 
and therefore subject to capture and confiscation by belligerent 
vessel if destined for a belligerent government, its army or navy, 
or its port blockaded or held by military forces ; if not so des- 
tined they are not contraband of war. Holland is not now at 
war and wheat and foodstuffs destined for use in that country 
not considered contraband of war. Persons are free to sell or 
ship foodstuffs from United States in ordinary commercial trans- 
actions without violating United States neutrality laws. Pending 
passage of bill before Congress, foreign boats referred to may not 
be registered in United States. This Government could not well 
furnish escort for fleet of grain steamers as such escort might 
involve United States in serious complications. 

W. J. Bryan." 
(Foreign Relations, U. S., 1914, Supplement, p. 274.) 


Of course any action may involve complication as may 
inaction, but in August 1914, there was a general belief 
in Europe that the United States would maintain the neu- 
tral rights of its citizens, but would not interfere with 
the belligerents. Many suggestions were made both by 
belligerents and neutrals in regard to convoying, but in 
general convoying of neutral merchant vessels was not 

Swedish proclamation. 1015. — The King of Sweden by 
proclamation of October 29, 1915, stated that the purpose 
of convoying was to " afford " Swedish merchant ships 
protection against search and detention by warships of 
foreign powers. 

" 4. Merchant ships which carry contraband of war, or which 
may reasonably be suspected of intending to render assistance con- 
trary to the laws of neutrality to a neutral power, may not under 
any circumstances be included in the convoy. 

" 5. In order to prevent merchant ships referred to in Section 4 
being included in the convoy, such measures of control as are 
considered suitable may be taken with regard to ships for which 
convoying has been applied for." (Foreign Relations, U. S. 1915, 
Sup. p. 628; 1918 Naval War College, International Law Docu- 
ments, p. 154.) 

Armed neutral merchant vessels. — While neutral mer- 
chant vessels were as a general rule armed against " pirates 
and thieving robbers " in early days, such arming was 
not common after the middle of the nineteenth century. 
The Declaration of Paris of 1856 in stating " Privateering 
is and remains abolished " was thought to put an end to 
the need of armed merchant vessels. There had been 
many bilateral treaties before this date forbidding pri- 
vateering, as the treaty between the United Provinces and 
Sweden, 1675; between the United States and Prussia, 
1785; and some of these early treaties made the penalty 
for privateering the same as for piracy. 

The words " piracy " and " privateering " were often 
used without clear distinction and sometimes the con- 
duct of pirates and of privateers were very similar, and 
each word had varying meanings. 


Piracy has had many definitions in the municipal laws 
of states. In general piracy from the international point 
of view is an unauthorized act of violence or depredation 
for private ends or showing, as was formerly said, animus 
furandi and committed outside any national jurisdiction. 
A privateer is usually commissioned by a letter of 
marque and reprisal or by some other authorization per- 
mitting a vessel to prey upon the property of a foreign 
state or of the citizens of that state. 

There may be reason for questioning the grounds for 
arming private vessels of belligerents in time of war and 
this question has been much discussed. The arming of 
neutral merchant vessels would be on grounds distinct 
from those supporting the arming of belligerent merchant 
vessels, and during recent wars piracy and privateering 
would not be among these grounds. 

Defense has been a usual ground for the use of force. 
Convoy has been resorted to as a method of defense 
against unlawful interference with neutral rights. In 
convoy there is a responsible state agency acting in de- 
fense of the neutral rights with a presumption that these 
rights are clearly understood by the commander of the 
convoy and that he is acting under instructions from his 

The arming of neutral merchant vessels would put a 
responsibility upon the master of the vessel for which he 
presumably had not been trained and in the exercise of 
which much would be left to chance. 

The treatment of armed neutral merchant vessels dur- 
ing the World War gave rise to discussion but there was 
no uniform opinion upon the subject. 

Attitude of belligerent toward armed neutral merchant 
vessels. — There was uncertainty on the part of Great 
Britain even in regard to the armed British merchant ves- 
sels, and in a message of Ambassador Page to the Secre- 
tary of State on January 5. 1917, this uncertainty is 
somewhat fully presented. 


" The British Government does not appear to know exactly 
where they stand with our Government with regard to the arm- 
ing of British merchantmen. In spite of our general pronounce- 
ment to the effect that merchantmen may properly he armed for 
defensive purposes they do not know how this would work out in 
practice or whether our authorities have laid down specific rules 
as to what constitutes defensive armament or what such rules 
might he. They understand in a general way that there is to be a 
limitation in number and in calibre of guns and that they should 
be mounted at the stern, failing which that ships might be classed 
as warships. 

" The British authorities look for a recrudescence of submarine 
activity off the American coast as soon as the Allies' reply to the 
President's note is made public, and they feel it their duty to see 
to it that their ships are adequately armed to meet this menace 
since from time immemorial it has been the undisputed right of 
merchantmen to arm for defense. In old times it was not thought 
unusual for a merchant man to be armed not merely with bow and 
stern chasers but with broadsides as well, and the necessity for 
this sort of armament is greater to-day than ever before, for, 
whereas in old times a hostile cruiser would be sighted on the 
horizon and the merchantman would take to flight using her stern 
chasers for defense, today a hostile submarine might suddenly ap- 
pear on the surface a mile ahead of the merchant ship and if the 
latter mounted guns only at the stern she would be in no position 
to defend herself. So much for the number and position of guns. 

" With regard to the calibre, the Admiralty has knowledge that 
the new German submarines carry comparatively heavy guns with 
a range of something like 8.000 yards. A merchantman with 
guns of less range might just as well be totally unarmed. 

"A point which seems to me to be of some importance is that 
the British Admiralty holds that there is nothing in the question 
as to whether British merchantmen are armed for defense or 
offense. Whatever the armament might be a merchantman to-day 
could be armed only for defense, since there is nothing afloat 
against which she could take the offensive. She can not be armed 
for the purpose of seeking out and destroying less heavily armed 
enemy merchant ships since none such is at present on the high 
seas, and it is not reasonable to suppose that a merchant ship, 
being without armor — no matter how numerous or how heavy her 
guns might be — could possibly be so rash as to attack an enemy 
man-of-war, but a heavy and mobile armament obviously seems 
necessary for merchantmen to meet the present submarine menace, 
and, if there is any danger of British merchant ships being re- 


fused clearance papers in American ports because of this, they 
may have to give up using American ports whenever possible." 
(Foreign Relations, U. S., 1917, Supplement I, p. 546.) 

This position seems to indicate a policy on the part of 
the British Government which in some respects would 
be out of accord with the American Department of State 
memorandum of September 19, 1914 (1916 Naval War 
College, International Law Documents, p. 93), but the 
practice of the authorities of the United States had been 
liberal in construing the memorandum of September 19, 

The Ambassador of the United States in Germany 
reported on January 21, 1917: 

"At 7 : 30 yesterday evening Count Montgelas of the Foreign 
Office called on me and said that the following note had been sent 
to the embassies and legations of several neutral nations, par- 
ticularly Spain and Norway, but was not sent to the United 
States because that country did not seem to be arming its mer- 
chant vessels, that Von Stumm, Undersecretary of State, had 
asked him, Montgelas, to give me a copy. Montgelas further said 
that Germany had never receded from the position it took con- 
cerning armed merchant vessels in the German note of February, 

" The note verbale is as follows, and is in French. I send 
translation and will send original French tomorrow in open 
cable : 

" 'According to information worthy of belief which the Imperial 
Government has received from a neutral country, the British 
Government has endeavored quite recently to decide the neutral 
shipowners engaged in transportation on its order to arm their 
ships with cannons. Likewise the armament of these neutral 
ships has been called for in the most energetic manner by English 
public opinion. 

" ' In view of these proceedings the German Government thinks 
it ought to call the attention of the neutrals to the fact that under 
existing conditions, neutral armed merchant ships run the risk 
of being taken for armed enemy merchant ships and of being in 
consequence attacked, these latter ships maneuvering often under 
a neutral flag to lay trap for German submarines. Moreover 
neutral ships of commerce which may make use of their tem- 
porary armament will be treated as pirates by the German naval 


" ' The Imperial Department for Foreign Affairs leaves it to 
the (space for name of legation) to communicate the preceding 

to its government by telegraph. Berlin, the ( ), 

to the Legation of ( ). ' " (Ibid., p. 91.) 

Action of the United States, 1917.— On March 12, 1917, 
while the United States was neutral, the Department of 
State gave to all foreign embassies and legations the fol- 
lowing : 

" The Department of State has the honor to state for the infor- 
mation of the Embassy that in view of the 

announcement of the Imperial German Government of January 31, 
1917, that all ships, those of neutrals included, met within certain 
zones of the high seas, would be sunk without any precautions 
being taken for the safety of the persons on board, and without 
the exercise of visit and search, the Government of the United 
States has determined to place upon all American merchant ves- 
sels sailing through the barred areas an armed guard for the 
protection of the vessels and the lives of the persons on board." 
(Foreign Relations, U. S., 1917, Supplement I, p. 171.) 

Armed neutral merchant vessels in foreign neutral 
waters. — Immediately after the arming of neutral mer- 
chant vessels, questions arose as to the status of such ves- 
sels in foreign neutral waters. Some states had prohib- 
ited the entrance of armed vessels without limiting the 
prohibition to merchant vessels of belligerents. 

In early March 1917 the Department of State of the 
United States sent to Spain, Norway, Sweden, and The 
Netherlands a query as to whether those governments pro- 
hibited " the entrance and departure of merchant vessels 
armed for defensive purposes." (Ibid., p. 550.) 

The replies were as follows: 

Spain, March 4, 1917, 

" Minister of Foreign Affairs states there are no restrictions 
against entrance or departure from Spanish ports of merchant 
vessels armed for defense only and no intention to change such." 
(Ibid, p. 551.) 

Norway, March 6, 1917, 

u The Minister for Foreign Affairs informs me that the Nor- 
wegian Government does not object to merchant vessels armed 


defensively entering and leaving Norwegian ports, but that such 
vessels are subject to examination by naval authorities." (Ibid, 
p. 551.) 

Sweden, March 6, 1917, 

11 Foreign Office considers Government's attitude undetermined, 
case in point not yet having arisen. More explicit answer promised 
after careful consideration." (Ibid, p. 551) 

The Netherlands, March 10, 1917, 

" Minister of Foreign Affairs informs me Dutch Government has 
treated armed merchantmen as war vessels since declaration of 
neutrality at beginning of war and they are not permitted to enter 
territorial waters except under stress of weather, etc. No distinc- 
tion is made for vessels armed for defensive purposes. This refers 
to belligerent vessels. Dutch Government has arrived at no con- 
clusion regarding armed neutral vessels. Minister for Foreign 
Affairs will inform me of any action which may be taken in this 
regard." (Ibid, p. 552) 

These replies do not cover the attitude toward armed 
neutral merchant vessels and further questions were raised 
particularly in regard to the treatment of neutral mer- 
chant vessels which had been armed privately and those 
which had been armed and furnished gun crews by a 

Later the American Ambassador in Spain informed the 
Secretary of State in a telegram of March 18, 1917, that, 

" Spanish Government now acting under regulation promulgated 
about two years ago which permits merchant vessels carrying one 
cannon for defensive purposes to enter Spanish ports as merchant 
vessels. No distinction is made between neutral and belligerent 
vessels nor between merchant vessels armed by private owners or 
by Government authorities. Merchant vessels armed with more 
than one cannon have frequently entered Spanish ports within last 
two years and if armament is obviously for defensive purposes 
only Minister of State informs me the number of cannon is ignored. 
Minister further states that no modification of this regulation is 
now contemplated, but that at any moment circumstances may 
demand a change of policy, in which event the Embassy will be 
promptly informed." (Ibid, p. 554) 


The Minister to Sweden, in a telegram to the Secretary 
of State March 21, 1917, said: 

" Foreign Minister told me to-day he was authorized give verbal 
Swedish neutrality rules. Contained no mention of armed mer- 
chant vessels, and that for the present Swedish Government was 
unable make any definite decision, but reserved the right to treat 
each case separately later in conference. I drew from Foreign 
Minister the statement that for the present armed American mer- 
chant vessels, whether armed by the Government or by the own- 
ers, would be allowed freely to enter and depart from Swedish 
ports as heretofore. In reply to my inquiry the Minister for 
Foreign Affairs confidentially stated that Sweden did not care to 
set a precedent on this question at present, but preferred to await 
developments, and that in not definitely committing themselves at 
present, Sweden obviated what might lead to some embarrassment 
with neighboring countries. I learned to-day from high Swedish 
official that Danish representative will make similar reply." (Ibid, 
pp. 554-55.) 

The reply of the Netherlands was embodied in a com- 
munication of March 22, 1917 : 

" By virtue of the Royal Decree of July 30, 1914, the presence of 
war vessels or vessels assimilated thereto belonging to foreign 
powers within the territorial waters of the Netherlands is not per- 

"Armed merchant vessels fall within the category of vessels 
without any distinction being made between the case where the 
owner of the ship has furnished her with armament on his own 
authority and the case where the foreign government has placed a 
military force on board the vessel for her protection. 

" The Royal Decree does not apply to the colonies of the Nether- 
lands." (Ibid., p. 555.) 

These replies do not show any clear unanimity of opin- 
ion as to what should be the rule of treatment of armed 
neutral merchant vessels. 

(a) Transfer of vessels before war. — In case of a 
transfer before war the nationality of a ship was pre- 
sumed to be that of the flag it had a right to fly. The 
right to fly the flag might be questioned, but, when 
proven that was till the World War and by most states 
during the World War regarded as conclusive as to the 


nationality of the vessel. Good faith in the transfer 
would, of course, be essential. It would be difficult to 
assume that transfer 15 days before the outbreak of 
war in accord with the law of the vendor and in accord 
with the law of the vendee could be proven invalid, and 
a purchaser would be justified in resting his title on con- 
formity to law without even raising the question of in- 
tent or good faith in such a case. 

Of course an entirely different type of question arises 
in case of transfers after the outbreak of war. 

(b) Seizure of flour on the Dale. — The Dale, a vessel 
of the Blue Line, had sailed before the outbreak of war 
and the title to the flour was in the merchant of state X 
and was to be paid for by the merchant of state D on de- 
livery. The merchant of state D after the declaration 
of war, by a change in terms of the original transaction, 
does obtain title to the flour by telegraph. The flour is 
of enemy origin and enemy goods, and a transfer, which 
would have been valid in time of peace is not valid 
in time of war. The transfer is not valid and the flour 
is liable to capture and condemnation. 

(o) Convoy. — Many of the rules issued by maritime 
states subsequent to 1909 and before 1915 embodied in 
some form, so far as convoy was concerned, Articles 61 
and 62 of the Declaration of London. This was true of 
the French instructions of 1912 ; the Japanese regulations 
of 1914; the Italian decree of 1915; and the instructions 
of the United States of 1915 and 1917. 

The use of convoy was therefore considered lawful and 
probable at the outbreak of the World War, though of 
course the right of convoy would not extend to the pro- 
tection of vessels engaged in unlawful undertakings. The 
legality of the conduct of vessels under convoy is vouched 
for by the commander of the convoy, and if a commander 
of a vessel of war of either of the belligerents questions 
the conduct of a vessel under convoy the matter should be 
investigated in good faith. 


(d) Merchant vessels and submarines. — Article 22 of 
the London Naval Treaty of 1930 is as follows : 

" The following are accepted as established rules of International 
Law : 

"(1) In their action with regard to merchant ships, submarines 
must conform to the rules of International Law to which surface 
vessels are subject. 

"(2) In particular, except in the case of persistent refusal to 
scop on being duly summoned, or of active resistance to visit or 
search, a warship, whether surface vessel or submarine, may not 
sink or render incapable of navigation a merchant vessel without 
having first placed passengers, crew and ship's papers in a place 
of safety. For this purpose the ship's boats are not regarded as 
a place of safety unless the safety of the passengers and crew is 
assured, in the existing sea and weather conditions, by the prox- 
imity of land, or the presence of another vessel which is in a posi- 
tion to take them en board. 

" The High Conti acting Parties invite all other Powers to express 
their assent to the above rules." (1930 Naval War College, Inter- 
national Law Situations, p. 159.) 

The significance of this article in its relation to subma- 
rines and armed vessels was discussed quite fully at the 
Naval War College in 1930. The questions involved in 
Situation I, 1930, were, however, mainly in regard to 
relations of belligerent submarines and merchant vessels 
of belligerents, and the rights of belligerents in regard to 
one another are under consideration, but Article 22 of 
the London Naval Treaty of 1930 applies not only to 
belligerents but also to neutrals, and a neutral would have 
even less justification for disregarding its provisions and 
in a lawfully conducted war no justification. 


(a) The seizure of the ships of the Blue Line on 
March 20 as enemy property is not lawful. 

(b) The seizure of the cargo of flour as enemy prop- 
erty on the Dale on March 21 is lawful. The transfer by 
telegraph on March 19 was not a valid transfer as against 
state Y. 


(c) State E has a lawful right to convoy its merchant 
vessels. The right to convoy applies to innocent vessels 
only and does not imply a total denial of the right to 
visit and search. 

(d) The arming of neutral merchant vessels is not un- 
lawful though since the London Naval Treaty of 1930, 
article 22, presumed unnecessary and undesirable. Since 
the Treaty of 1930 the order in regard to sinking sub- 
marines would be unlawful for states parties to article 22. 

Situation II 

States X and Y are at war in 1934. Other states are 
neutral. States X, Y, N, M, and O are parties to the 
Washington Treaty Limiting Naval Armament of 1922 
and the London Naval Treaty of 1930. 

A private ship-building company in state N, prior to 
the war, has built for state X several 20,000-ton unarmed 
vessels equipped with decks for aircraft landing and fly- 
ing off, and these vessels have been serving on the high 
sea as stations for the regular transoceanic air service be- 
tween state X and state M. 

(a) One of these vessels, the No. 5, which had been 
nearly completed in 1929 but on which on account of an 
accident and labor troubles construction had been de- 
layed, having on the day before war was declared sailed 
under the flag of N for state M in order to install there 
certain essential flying-off equipment, was met at sea the 
day after war was declared and before reaching state M, 
by the Yoba, a vessel of war of state Y. The captain 
of the Yoba wished to convert the No. 5 immediately into 
an aircraft carrier to accompany the Yoba and accord- 
ingly seized the No. 5 and made this conversion. 

(b) If the Yoba had met the No. 5 after installing its 
equipment in state M, and when sailing under the flag 
of state N ,for X, would the decision be the same as in 
(a) I 

(c) A private shipbuilding company in state R has 
completed a vessel of 9,000 tons with 5-inch guns and a 
deck for two aircraft, the No. 6, for which state X has 
paid but which had not sailed from R before the decla- 



ration of war. Y communicates to R a request that the 
No. 6 be interned. 

(d) The Saba, a merchant vessel, lawfully flying the 
flaff of state S is summoned to lie to by a submarine of 
state X and is visited by a boat from the submarine. 
State S has a treaty with state X agreeing to the " de- 
livering up " of contraband and the Master of the Saba 
offers to " deliver up " all contraband maintaining this 
is his sole obligation under the conditions. The sub- 
marine threatens to sink the Saba unless it agrees to 
change its course and proceed to port Xena of state X. 

What are the lawful rights of all the parties under 
the above conditions? 


(a) The No. 5 was on a lawful voyage when met by 
the Yoba. 

The Yoba could seize the No. 5 and bring her to a 
prize court of Y. 

Except in the case of urgent military necessity conver- 
sion before adjudication would not be lawful and in any 
case full compensation must be made for N's loss. 

(b) The No. 5 after installing its equipment in state 
M and sailing for state X should be brought to a prize 

Except in case of urgent military necessity conversion 
before adjudication would not be lawful. 

States N and M have no responsibility nor would Y 
have any liability as the No. 5 is bound for X, a belliger- 
ent destination. 

(c) The No. 6 should be interned by state R. 
The construction of the No. 6 in state R is lawful. 

(d) The Saba is under legal obligation to " deliver 
up " the contraband. The Saba is under no legal obliga- 
tion to agree to change its course and to proceed to port 
Xena, though it would be under obligation to go if ac- 
companied by the submarine or in control of a prize crew. 



Treaties and international law. — Treaty is the general 
term used to cover agreements between two or more states. 
It is understood that to be valid it must be in accord with 
the laAv of both of the parties to the treaty and in accord 
with international law. Other political entities than 
states may enter into international agreements so far as 
they have capacity under their fundamental law, and the 
treaty-making capacity of some states is not unlimited. 
Two or more states may enter into a treaty for a specific 
purpose which has little or no relation to other states, and 
which may have no bearing on international law, e. g., 
two states might agree between themselves as to the diver- 
sion of the waters of a shallow boundary stream. Two 
or more states might enter into a treaty which, while bind- 
ing only the parties, might have a far-reaching effect 
upon other states, e. g., two states might agree upon an 
offensive and defensive alliance. Two or more states 
might agree upon principles which should for a specified 
period or for specified conditions be considered as bind- 
ing, e. g., the principles of the Treaty of Washington of 
1871 in regard to neutral liability. Such treaties may or 
may not be regarded as important for international law, 
but they tend to become significant as precedents and 
may, as in the case of the principles of the Treaty of 
Washington, become generally accepted as setting forth 
international law. When a principle once a subject for 
treaty negotiation becomes generally recognized, it may 
be regarded as international law, e. g., inviolability of 

The most common type of treaty is an international 
agreement in which the parties provide for mutually ad- 
vantageous conduct or understandings with reference to 
one another. Such a treaty as the Washington Treaty 
of 1922, limiting naval armament, may have been sat- 
isfactory to the parties as putting an end for the time 

4448 — 35 4 


to their competition in naval armament, and the London 
Naval Treaty may have elaborated these understandings. 
These treaties would not necessarily create any legal ob- 
ligations for nonparty states, nor form bases for prin- 
ciples of international law, though the policies of third 
states might be modified by the obligations assumed by 
the party states. 

The states party to a treaty have an international ob- 
ligation to observe the provisions of a treaty into which 
they have entered, though there is often a difference of 
opinion as to the interpretation of the provisions. There 
could not be any legal objection raised when a state avails 
itself of the provisions of a treaty in accord with which 
it may modify its relations to the other parties to the 
treaty, or by actual denunciation in accord with the pro- 
visions of the treaty may put an end to all its obligations 
under the treaty. Treaties concluded in perpetuity, or 
without provision for revision or denunciation, have 
usually been causes of international disputes and 

Aircraft station vessel. — There may be a distinction 
between an aircraft station vessel and a seadrome, as the 
aircraft station vessel is itself capable of navigation and 
comes within the category of vessels, while the seadrome 
is a structure for a specific purpose. The status of the 
seadrome would therefore be subject to different laws 
from those governing vessels. 

While an aircraft station vessel might not be primarily 
designed for an aircraft carrier, such a vessel might be 
transformable into an aircraft carrier. No intention to 
furnish an aircraft carrier to a belligerent could be based 
simply on the fact of pre-war construction of an aircraft 
station vessel of a type already in use for maritime air- 
craft stations on a line between two states. 

Further there is no limitation upon the tonnage of 
such vessels in any treaty, as these vessels are not con- 
structed for war purposes. It may be doubtful whether 
one belligerent, when both belligerents were parties to 


Hague Convention VI of 1907 relating to status of 
enemy merchant ships at the outbreak of hostilities, 
would be justified in detaining in its own ports at the out- 
break of war such a vessel under the provisions of article 
V, which reads: 

" The present Convention does not affect merchant-ships whose 
build shows that they are intended for conversion into vessels 
of war." 

If the build of an aircraft station vessel did not show 
that it was intended for conversion into a vessel of war, 
articles 2 and 3 of the convention provides that if such a 
vessel is detained in a belligerent port or met at sea and 
is requisitioned, there must be payment of compensation. 

In the discussion at the Naval War College in 1932 
artificial structures and maritime jurisdiction were con- 
sidered and it was pointed out that a seadrome as located 
at a defined place at sea would be different in character 
from an aircraft vessel from the nature of its construc- 
tion and possible use. The seadrome as a fixed structure 
would have rather more of the attributes usually associ- 
ated with land jurisdiction while the aircraft vessel would 
in the main be under maritime rules even though, if per- 
manently located at a specified place at sea, the jurisdic- 
tion might be somewhat modified from that exercised 
over a vessel navigating under ordinary circumstances. 

Aircraft carrier. — In the Washington Treaty on the 
Limitation of Armament, 1922, Chapter II, Part 4, "Air- 
craft Carrier " was defined as follows : 

"An aircraft carrier is defined as a vessel of war with a dis- 
placement in excess of 10,000 tons (10,160 metric tons) standard 
displacement designed for the specific and exclusive purpose of 
carrying aircraft. It must be so constructed that aircraft can 
be launched therefrom and landed thereon, and not designed and 
constructed for carrying a more powerful armament than that 
allowed to it under Article IX or Article X as the case may be." 
(1921 Naval War College, International Law Documents, p. 322.) 

This definition was replaced in the London Naval 
Treaty, 1930, Article 3, by the following : 


" ' The expression " aircraft carrier " includes any surface vessel 
of war, whatever its displacement, designed for the specific and 
exclusive purpose of carrying aircraft and so constructed that air- 
craft can be launched therefrom and landed thereon.' " (1930 
Naval War College, International Law Situations, p. 144.) 

This definition of 1930 is specifically limited to " ves- 
sels of war " and in the same article there is provision 
that the fitting of a landing-on or flying-off platform or 
deck on a capital ship, cruiser, or destroyer not designed 
cr adapted exclusively as an aircraft carrier, would not 
make these vessels chargeable against aircraft tonnage. 

Regulations of United States, 191 4. — Shortly after the 
declaration of war in 1914, the United States as a neutral 
issued instructions in regard to foreign vessels in porte 
of the United States. The following telegraphic in- 
struction was sent in early August to the collector of 
customs of the port of New York : 

" ' Have representative of each foreign vessel in your port 
certify to this Department whether she is a merchant vessel in- 
tended solely for the carriage of passengers and freight, exclud- 
ing munitions of war, or whether she is a part of the armed 
force of her nation. This information is for purpose of maintain- 
ing the neutrality of the United States under recent proclamation 
Fresident. Clearance will be refused in absence of this certificate. 

" • Wire Department before issuing clearance papers to foreign 
vessels unless you are satisfied after careful inspection that ship 
has not made any preparations while in port tending in any way 
to her conversion into a vessel of war. Taking on abnormal 
amount of coal, except in case of colliers, would indicate such 
conversion. Unpacking of guns already on board would be con- 
clusive. Painting of vessel a war color would indicate conversion. 
It must be clear that she is not to be used for transportation 
recruits or reserves for a foreign army or navy. This does not 
prevent transportation of passengers in usual sense, as where 
there are women and children and men of different nationalities 
even though among them there were a few reserves without your 
knowledge. If her passengers are nearly all men and practically 
all of same nationality, clearance cannot be granted. It must be 
unquestionable that she has no arms or munitions of war 
aboard.''' (Foreign Relations, U. S., 1914 Supplement, p. 595.) 


Such instructions had been preceded by a communica- 
tion of the British charge d'affaires of August 4, 1914, in 
which he said to the Secretary of State : 

" Sir : His Majesty's Government have been informed that the 
German vessel Kronprinz Wilhelm sailed from New York on the 
night of the 3d of August, without passengers, but with a heavy- 
load of coal, 7,000 tons, and fitted with two long-range guns. Her 
superstructure had also been painted gray. All these preparations 
were made before the vessel left United States waters. 

" It is a matter of common knowledge that similar preparations 
are being made on board other German vessels, notably the Vater- 
land and the Barbarossa, in United States ports, and they will no 
doubt attempt to adopt the same tactics as the Kronprinz Wilhelm. 

" In view of the state of war now existing between Great Britain 
and Germany I have the honour, under instructions from Sir Ed- 
ward Grey, to call your most serious attention to the action taken 
in regard to these vessels and to urge the United States Govern- 
ment to take immediate steps to prevent these and other such 
vessels leaving United States waters without passengers and after 
carrying out such obviously warlike preparations as described 
above, which, when carried out in neutral waters, constitute a dis- 
tinct breach of the laws of neutrality." (Ibid, p. 594.) 

In reply for the Secretary of State, Mr. Lansing said : 

" Sir : I have the honor to acknowledge your note No. 254 dated 
August 4, 1914, 11 p.m., but presented to the Department on the 
following day, on the subject of the equipment and sailing of the 
Kronprinz Wilhelm from New York on the night of the 3d instant, 
and of preparations being made on board the German vessels 
Vaterland- and Barbarossa in United States ports. 

" Under instructions from Sir Edward Grey you call my atten- 
tion, in view of the state of war existing between Great Britain 
and Germany, ' to the action taken in regard to these vessels and 
to urge the United States Government to take immediate steps 
to prevent these and other such vessels leaving United States 
waters without passengers and after carrying out such obviously 
warlike preparations as described above, which, when carried out 
in neutral waters, constitute a distinct breach of the laws of neu- 

" In reply I have the honor to inform you that as the instance 
of the Kronprinz Wilhelm occurred, as you say, on the 3d instant 
before the declaration of war with Germany had been issued by 
the British Government, it would appear that the statement in 


your last paragraph quoted above has no application to the case 
of that vessel. 

"As to the attitude of the United States Government toward 
the other vessels mentioned in your note I have the honor to 
advise you that these vessels are, and have been for some time, 
under the surveillance of United States authorities with a view 
to preventing a breach by them of the neutrality of the United 
States. The Department is advised that these vessels have not 
as yet left American waters. 

" With reference to your statement quoted above as to what in 
the opinion of His Britannic Majesty's Government may be con- 
sidered as constituting a breach of the laws of neutrality in cases 
of this character, I have the honor to refer you to my note of the 
19th instant relating in some respects to the rights and duties of 
the United States as a neutral power during the pending Euro- 
pean wars." (Ibid. p. 602.) 

Naval vessel in port. — While under the Washington 
Treaty of 1922 on Limitation of Naval Armament, Ar- 
ticle XI, there was a restriction upon the construction by 
one of the contracting parties for another contracting 
party of vessels of war exceeding 10,000 tons displace- 
ment, this provision did not apply to non-contracting 
parties. By article 8 of the London Naval Treaty of 
1930, the exemption on the ground of tonnage is some- 
what further restricted and more definite provisions are 
enumerated as to equipment. 

Though the parties to the specific provisions of the 
Washington and London treaties would be bound by the 
provisions of these treaties and though states not parties 
to these treaties would not be bound by the treaties as 
such, all parties would be bound by the principles of 
international law. 

The rules in regard to internment of vessels of war 
are comparatively modern rules, and Hague Convention 
XIII, Article 24, provides for internment of a vessel of 
war with its officers and crew. The instructions of states 
in regard to internment usually provide for vessels of 
war which have entered neutral ports after the outbreak 
of war. The regulations in regard to submarines issued 


during the World War mainly contemplated the entrance 
of armed and commissioned vessels. 

A vessel which is in a neutral port, completed, armed, 
and paid for by one of the belligerents but not yet manned 
or commissioned may be a potential threat to the other 
belligerent. It might quickly become an instrument of 
war if conveyed outside of neutral jurisdiction and so 
long as it remains within neutral jurisdiction it is safe 
from capture. In order that this protection afforded by 
neutral jurisdiction may not be used by one belligerent 
to the advantage of one as against the other, it has been 
customary to require that neutrals show due diligence in 
supervising activities tending to aid either belligerent 
along certain well-defined lines in furnishing and equip- 
ping ships. 

The Somers, 1898. — A torpedo boat, the Somers, be- 
longing to the United States, had, during the war with 
Spain in 1898, been stored at Falmouth, England. In 
November 1898, after active hostilities had ceased and be- 
fore the treaty of peace had been signed, the United States 
desired to bring the Somers from England and requested 
permission from the British Government stating that " in 
case of resumption of hostilities with Spain this vessel will 
not be made use of." 

After considering the American proposition, the 
British Government through the Foreign Office said on 
December 8, 1898 : 

" In view of this assurance I have the honor to state that Her 
Majesty's Government are glad to comply with your request, and 
that the necessary instructions will at once be sent to the proper 
authorities in order to facilitate the departure of the vessel." 
(Foreign Relations, U. S., 1898, p., 1007.) 

American attitude on submarines, 1930. — At the Lon- 
don Naval Conference in 1930, the members of the Amer- 
ican delegation endeavored by speeches over the radio 
and otherwise to make known, not merely to the Confer- 
ence, but to the world at large, their attitude upon ques- 
tions before the Conference. The chairman of the 


American delegation on February 6 stated to the press 
that " Our delegation is in agreement on every item of 
our program ", and at the end of the Conference this was 

At the plenary session of the Conference on February 
11, he said: 

" The essential objection to the submarine is that it is a 
•weapon particularly susceptible to abuse, that it is susceptible of 
use against merchant ships in a way that violates alike the laws 
of war and the dictates of humanity. The use made of the sub- 
marine revolted the conscience of the world, and the threat of its 
unrestricted use against merchant ships was what finally deter- 
mined the entry of my country into the conflict. In the light of 
our experience it seems clear that in any future war those who 
employ the submarine will be under strong temptation, perhaps 
irresistible temptation, to use it in the way that is most effective 
for immediate purposes, regardless of consequences. These consid- 
erations convince us that technical arguments should be set aside 
in order that the submarine may henceforth be abolished. We 
have come to the conclusion that our problem is, whether in this 
day and age, and after the experiences of the last war, the nations 
at this conference are justified in continuing to build these instru- 
ments of warfare, thereby assuming responsibility for the risk of 
repeating in any possible future wars the inhumane activities 
which have been condemned by the verdict of history. 

" It seems to the American Delegation that we have a common 
interest in the abolition of the submarine ; first of all, for the pur- 
pose of suppressing costly weapons which we can forego by agree- 
ment and by the abolition of which we reduce our requirements in 
other classes of ships ; and, second, for the purpose of eliminating 
for the future the dreadful experiences of the past. 

" The American Delegation, therefore, urges that we set aside 
purely technical considerations and give careful study to the possi- 
bility of eliminating this whole problem." (Publications of the 
Department of State, Conference Series No. 3, pp. 21-22.) 

On the proposition of the French delegation on that 
day, the five powers agreed to place the use of submarines 
under the same rules as the use of surface vessels of war, 
though there has been question as to whether the article 
of the treaty drafted for the purpose accomplished that 


In a radio address on February 16, 1930, Senator Rob- 
inson, a member of the American delegation, stated the 
French proposition as that: 

" all of the nations should agree that hereafter submarines shall 
be forbidden to attack merchant ships, except after visitation and 
search, and provision made for the safety of passengers and crew 
in the same way that international law requires surface vessels 
to do." (Ibid, p. 26.) 

Treaty agreement on rules for submarines, 1930. — The 
London Naval Conference agreed upon rules for the 
conduct of submarines as regards merchant vessels in 
part IV, article 22, which states : 

" The following are accepted as established rules of Interna- 
tional Law: 

" (1) In their action with regard to merchant ships, submarines 
must conform to the rules of International Law to which surface 
vessels are subject. 

" (2) In particular, except in the case of persistent refusal to 
stop on being duly summoned, or of active resistance to visit 
or search, a warship, whether surface vessel or submarine, may 
not sink or render incapable of navigation a merchant vessel with- 
out having first placed passengers, crew and ship's papers in a 
place of safety. For this purpose the ship's boats are not re- 
garded as a place of safety unless the safety of the passengers 
and crew is assured, in the existing sea and weather conditions, 
by the proximity of land, or the presence of another vessel which 
is in a position to take them on board." 

" The High Contracting Parties invite all other Powers to 
express their assent to the above rules." (Publications of the De- 
partment of State, Conference Series, No. 2, p. 16) 

In a pamphlet issued in 1930 by the Department of 
State containing a digest of the treaty it was said : 

" Part IV. (This part applies to the United States, Great Britain, 
France, Italy, and Japan.) 

"Article 22. This article specifies that submarines must con- 
form to the rules of international law to which surface vessels 
are subject regarding merchant ships, and further provides that 
any warship (whether surface vessel or submarine) must not 
sink or render incapable of navigation, a merchant vessel without 
first having placed the passengers, crew, and ship's papers in a 
place of safety, except when such merchant vessel persistently re- 


fuses to stop on being duly summoned or actively resists visit or 
search. It also provides that the merchant ship's boats are not 
regarded as a place of safety unless the safety of the passengers 
and crew is assured under existing conditions by the proximity of 
land or the presence of another vessel which is in a position to 
take them on board. 

"All the powers not party to the treaty are invited by this article 
to express their assent to the above rules." (Publications of the 
Department of State, Conference Series, No. 4, p. 9.) 

This part of the treaty is to " remain in force without 
limit of time." 

The earlier rules to which it may be presumed this 
article 22 refers are in regard to visit and search, though 
in wording this article is comprehensive and refers to all 
action of " surface vessels " " with regard to merchant 
ships." It is also presumed that article 22 in mentioning 
" surface vessels " intended to include all types though 
in preceding articles it has been customary to refer specifi- 
cally to " surface vessels of war " or even " naval surface 
combatant vessels." 

Question may be raised as to action on the part of a 
merchant vessel of an enemy or of a neutral which might 
constitute " persistent refusal " to stop on being " duly 
summoned " or " active resistance." 

The instructions for the Navy of the United States of 
June 1917 state : 

" 47. If the summoned vessel resists or takes to flight she may 
be pursued and brought to by forcible measures if necessary." 

The United States has regarded resistance or flight as 
ground for using force sufficient to cause the merchant 
vessel to lie to for visit and search, but not as ground for 
sinking the vessel. Of course the merchant vessel might 
be sunk in the exercise of the right, but the use of force 
was held to be restricted to that necessary to bring the 
vessel to, and forcible resistance by the merchant vessel 
was not in itself a ground for sinking the merchant vessel, 
but a just ground for its condemnation. 

As by the explanations and remarks of those negoti- 
ating the treaty, the intent was to restrict the action of 


submarines in order that they should conform to the ac- 
cepted rules for surface vessels under international law, 
it would be unwise for any naval officer to be less strict in 
interpretation of the rules of international law in regard 
to the use of force in connection with visit and search 
than prior to 1930. In other words, the merchant vessel 
might be " brought to by forcible measures if necessary " 
and such measures should be strictly limited to that end, 
as more extreme action must depend upon other consider- 
ations, some of which may rest upon the results of the visit 
and search for which the merchant vessel is brought to. 
Hitherto even in case of flight or " persistent refusal 
to stop " sinking of a merchant vessel would not be 
approved if the vessel could otherwise be stopped, and 
sinking in case of " active resistance " or of resistance 
would be only a last resort. It cannot be presumed that 
those are in error who would read the treaty as follows : 

(1) In general, in their action with regard to merchant ships, 
submarines must conform to the rules of International Law to 
which surface vessels are subject, but 

(2) In particular, a warship, whether surface vessel or sub- 
marine, may not sink or render incapable of navigation a mer- 
chant vessel without having first placed passengers, crew and 
ship's papers in a place of safety, except in the case of persistent 
refusal to stop on being duly summoned, or of active resistance to 
visit or search. 

Sending in of seized vessels. — The " sending in " of 
prizes was understood to involve the placing of a prize 
crew on board the vessel seized and the navigating, of the 
vessel to the nearest convenient prize court, or the escort- 
ing o,f the vessel to such port by the capturing vessel. 
Detailed instructions were given for this action. In this 
action the will of the captain was substituted for that of 
the master of the seized vessel and the responsibility was 
correspondingly shifted. 

Gradually, with the abolition of privateering, and the 
increase in size and speed of public and private vessels, 
the " sending in " of seized vessels became much more of 
a problem. A prize crew, if it could be spared, might 


be unable to control the movements of a modern vessel 
of large tonnage, and a submarine could not spare a crew. 
Escorting a vessel under modern conditions where aid 
might be summoned by the seized vessel by radio would 
make the escorting perilous. The results of bringing the 
seized vessel in, either as to the material goods con- 
demned to the captor, or kept from the other belligerent, 
would ordinarily be slight as compared to the loss of 
time and the risk involved in the operation. 

The risk of attack by submarine or other hostile force 
during the " delivering up " of goods at sea has made 
this procedure of doubtful value and expediency in most 

It was but natural that other methods should be sug- 
gested and resorted to in recent years, when the charac- 
ter of vessels of war and of peace had become so unlike 
in many respects as compared with those of the early 
nineteenth century. 

Recent practice and suggestions. — Article 48 of the un- 
ratified Declaration of London of 1909 embodied the gen- 
eral opinion of that period upon the treatment of neutral 
vessels seized as prize. It said that : 

"A captured neutral vessel is not to be destroyed by the captor, 
but must be taken into such port as is proper in order to determine 
there the rights as regards the validity of the capture." 

Article 49, however, made an exception in regard to a 
vessel which would be liable to condemnation in case the 
taking in of the seized vessel " would involve danger to 
the ship of war or to the success of the operations in which 
she is at the time engaged." In the general report of the 
conference, which had official weight, it was held that 
danger must exist " at the moment when the destruction 
takes place." The argument being in part that as the 
ship was already practically lost to the owner, being 
liable to condemnation, it would involve no further loss 
to him but would constitute the destruction of belligerent 
property by the belligerent. Article 50 provided for plac- 
ing the persons on board and the ship's papers in safety 


before destruction, and the exceptional emergency had 
always to be proved before any suit for condemnation 
would have effect, and this was to be proved " in a man- 
ner to meet the opposition of the neutral " ; otherwise com- 
pensation was due the neutral. Other liabilities also 
guarded against destruction, and for innocent goods de- 
stroyed compensation must be made. There had been 
much discussion of this subject. Lord Stowell in 1819 
had declared that destruction could be justified only " by 
a full restitution in value", (The Felicity, 2 Dodson 
Admiralty Reports, 381) and there had been a general 
opinion against destruction (1911 Naval War College, In- 
ternational Law Situations, pp. 51-98). The Italian 
Government had applied the provisions of the Declara- 
tions of London in its war with Turkey in 1911. 

As the Declaration of London was operative only dur- 
ing the early weeks of the World War, new considera- 
tions arose. 

It was proposed by some that each merchant vessel 
fchoulcl be examined prior to departure from a port, and 
be certified as to the character and as to the nature of 
its cargo, thus putting a heavy burden and responsibility 
upon the neutral. The difficulty of effective enforcement 
of any such insurance as to the nature of a cargo was 
often evident during the period while the prohibition 
of importation of alcohol into the United States was in 
force. It was also evident that one of the belligerents 
might be benefited while the other might be injured by 
such a rule, and that in some cases weak states not ac- 
customed to being or not able to be self-sufficient might 
be placed at great relative disadvantage or be put to 
great expense to become self-sufficient in materials essen- 
tial in time of war. 

Sequestration in a neutral port pending the decision 
of a prize court was frequently proposed before and dur- 
ing the World War, and there were some treaties which 
provided for such sequestration. It has been argued 
with some force that during the World War the position 


of Great Britain and its allies would have been strength- 
ened if sequestration had been the rule on the ground 
that neutral shipping which was sunk might have been 
sequestrated for a time, and innocent cargo and ship- 
ping would have been freed. In any case there would 
have been less irritation of neutrals, and with ships which 
had been sequestrated in their ports there would be pos- 
sibilities of bringing pressure upon belligerents disre- 
garding the laws of war. 

Such a proposition as this, made in regard to seques- 
tration, may. as is the case in the proposition in regard 
to certification, be an indirect recognition that destruction 
of a seized vessel is approved. Destruction, according to 
accepted law is unlawful, save under -very exceptional cir- 
cumstances. Another and frequently made suggestion 
has been that submarines be banned, but this suggestion 
need not be seriously considered while naval treaties em- 
body present provisions. 

The rule as embodied in article 22 of the London Xaval 
Treaty, 1930. practically restricts the use of the sub- 
marine to that of a surface cruiser as regards vessels of 
commerce, while leaving the submarine unrestricted as 
regards vessels of war. making it once more essential 
that vessels of war and vessels of commerce be clearly 
distinguished and distinguishable. It cannot easily be 
presumed that armed merchant vessels could be toler- 
ated while submarines should be required to conform to 
article 22. 

Delivery of contrabamd. — The subject of delivery of 
contraband at sea was considered at length in Interna- 
tional Law Situations. 1911, pages 99-110. It was there 
shown that early treaties permitted masters of merchant 
vessels to ;i agree, consent, and offer to deliver '' contra- 
band goods, when these formed a part of the cargo, after 
which they might proceed. 

Gradually, limitations began to be inserted recognizing 
the difficulties of delivering cargoes at sea, as in article 


18 of the treaty between the United States and Brazil, 
of 1828, in which it was said: 

" . . . No vessel of either of the two nations shall be de- 
tained on the high seas on account of having on board articles of 
contraband, whenever the master, captain, or supercargo of said 
vessels will deliver up the articles of contraband to the captor, 
unless the quantity of such articles be so great and of so large 
a bulk that they cannot be received on board the capturing ship 
without great inconvenience ; but in this and all the other cases 
of just detention the vessel detained shall be sent to the nearest 
convenient and safe port, for trial and judgment, according to 
law." (8 U. S. Statutes, p. 394.) 

Provisions to the same effect appear in many treaties 
of the nineteenth century, but toward the end of the cen- 
tury there was a growing support for the position that 
prize court proceedings should- be essential in the change 
of title to goods seized as prize. Article 44 of the unrati- 
fied Declaration of London, 1909, provided for the de- 
liven 7 of contraband under certain circumstances if it was 
not of an amount sufficient to make the vessel itself liable 
to condemnation. Other provisions in regard to delivery 
of contraband at sea were also discussed, but difficulties 
of a practical nature were often advanced in opposition 
to the extension of the practice by general agreement of 
the naval powers. 

The actual form upon which the London Xaval Confer- 
ence agreed in the Declaration of London in 1909 was 
as follows: 

"Article 44. A vessel stopped because carrying contraband, and 
not liable to condemnation on account of the proportion of contra- 
band, may, according to circumstances, be allowed to continue 
her voyage if the master is ready to deliver the contraband to 
the belligerent ship. 

" The delivery of the contraband is to be entered by the captor 
on the logbook of the vessel stopped, and the master of the vessel 
must furnish the captor duly certified copies of all relevant papers. 

" The captor is at liberty to destroy the contraband which is thus 
delivered to him." (1909 Naval War College, International Law 
Topics, p. 95.) 


The report of the British delegation to Sir Edward 
Grey showed the course of discussion at the conference, 
and some of the reasons for the adoption of article 44. 

" 18. Careful consideration was given to the question, raised 
in paragraph 33 of our instructions, whether any satisfactory 
arrangement could be devised for allowing the immediate removal 
by the captor of any contraband found on board a neutral vessel. 
Proposals were put forward by several delegations. The most 
far-reaching one was one submitted by Austria-Hungary, under 
which the neutral vessel carrying contraband was to be given 
the right to proceed on her way without further molestation if 
the master was ready to hand over the contraband to the captor 
on the spot, a proviso being added which made it necessary that 
the subsequent decision of a prize court should intervene in 
order either to validate the transaction or to decree compensa- 
tion where the captor should have been proved to have acted 
wrongfully. In this form, the proposal did not meet with gen- 
eral support. It was objected that to concede an absolute right 
in the terms to the neutral would constitute an unjustifiable inter- 
ference with the legitimate rights of belligerents, and that, more- 
over, the rule would be found in practice unworkable. The Con- 
ference therefore fell back upon the clause now embodied in the 
Declaration as article 44, which goes no further than authorizing 
the handing over of contraband, or its destruction, on the spot, 
by common agreement between captor and neutral, subject to the 
subsequent reference of the case to the prize court. It is not 
anticipated that it will be possible to apply this rule in very 
numerous instances, as, under modern conditions of maritime 
commerce, the transshipment or destruction of cargo on the high 
seas is likely in most cases to present serious or insuperable dif- 
ficulties. But, so far as it goes, the rule may afford a welcome 
measure of relief in favorable circumstances. (Parliamentary 
Papers, Miscellaneous, No. 4, 1909, International Naval Confer- 
ence, Cd. 4554, p. 97.) 

Regulations during the World War. — The instructions 
to naval officers in the period 1914-1918 and earlier in the 
nineteenth century contain provisions embodying in large 
measure the principles of the Declaration of London. 
This is evident in such provisions as the Japanese regula- 
tions governing capture at sea of 1914, article 70 of which 
provides : 


"A vessel stopped because carrying contraband, and not liable 
to condemnation on account of the proportion of contraband, may, 
according to circumstances, be allowed to continue her voyage if 
the master is ready to deliver the contraband to the belligerent 
ship. The delivery of the contraband is to be entered by the 
captor on the log book of the vessel stopped, and the master of 
the vessel must furnish the captor duly certified copies of all 
relevant papers. The captor shall prepare a document in dupli- 
cate according to Form No. 6 with regard to kinds of contraband 
and shall give one copy to the master of the vessel. The captor 
is at liberty to destroy the contraband which is thus delivered 
to him." (1925 Naval War College, International Law Documents, 
p. 166.) 

The Instructions issued by the United States in June 
1917, article 86, provide that "if circumstances preclude 
such delivery of the contraband cargo, the vessel should 
in general be sent in." 

Difficulties of delivering cargoes at sea. — At the time 
when treaties relating to the delivery of cargoes at sea 
were made, from the seventeenth to the middle of the 
nineteenth century, there was a considerable equality in 
size and in other respects between vessels engaged in war 
and vessels engaged in commerce. Often the amount of 
cargo liable to condemnation, if the merchant vessel 
should be taken in, might be insignificant as compared 
with the whole cargo, or as compared with the expense or 
inconvenience of taking the vessel in even though there 
was no question as to the strict right to take the vessel to a 
prize court. With view to meeting such conditions with- 
out unduly inconveniencing either party, these early 
treaties inserted such provisions as article 7 of the treaty 
of February 24, 1676-77, between Great Britain and 
France, which said : 

" If the vessel is laden but in part with contraband goods, and 
the master thereof offers to put them in the captor's hands, the 
captor shall not then oblige him to go into any port, but shall suffer 
him to continue his voyage." (1911 Naval War College, Inter- 
national Law Situations, p. 100.) 
4448—36 5 


It was early recognized that there might be grave risks 
and possibilities of irregularities if delivery of cargo at 
sea was not carefully safeguarded, and later treaties were 
elaborated to meet these contingencies. Gradually, such 
treaty provisions became less frequent, but regulations 
for the conduct of naval war even during the World War 
provided for delivery of cargo at sea. Some of these 
follow closely article 44 of the unratified declaration of 
London of 1909, and provide that the commander of the 
visiting vessel may destroy the contraband which has been 
delivered to him. 

It was maintained that resort to delivery of contra- 
band subjected the visiting vessel to undue risk, as the 
change in conditions due to speed of vessels, use of radio, 
and of submarines and other modern instruments in war 
rendered the reasons for delivering up of contraband at 
sea no longer valid. Even if this be true, it was con- 
tended that this did not give one belligerent a right to 
change the laws of war during the period of war. Then 
belligerents began to advance the doctrine of reprisal as 
basi^ of their acts, disregarding the fact that reprisal 
gave no ground for limiting the rights of neutrals, 
though neutrals might be liable to inconvenience or other 
incidental consequences of acts of reprisal aimed directly 
at one belligerent by the other. 

" Proceed as directed." — In the unratified treaty in 
relation to the use of submarines and noxious gases 
in warfare, drawn up at the Washington Conference in 
1922, under article I was the clause: 

" A merchant vessel must not be attacked unless it refuse to 
submit to visit and search after warning, or to proceed as di- 
rected after seizure." 

The Institute of International Law in 1913 differen- 
tiated seizure and capture: Seizure in time of war is the 
taking possession of a vessel or goods with or without the 
assent of the master, not necessarily involving bringing 
the matter to a prize court; capture implies that the 
authority of the captor is substituted for the authority 


of the master of the captured vessel, though the ultimate 
disposition of the vessel and cargo may rest in the prize 
court. The definitions of the Institute imply that seiz- 
ure when applied to a cargo may involve detaining the 
vessel pending decision of the prize court upon the 
liability of the cargo to condemnation. 

There may be exigencies which would justify seizure of 
a neutral merchant vessel and immediate use of a part or 
the whole of its cargo, but these exigencies should be im- 
mediate and compelling and in such cases inventories 
must be made and care must be taken to avoid liabilities 
other than for payment for cargo taken. 

Such statements as were made in regard to seizures in 
British orders in council during the World War were not 
statements of new principles of international law, but of 
what the British authorities proposed to do or what they 
had done when neutrals confined their opposition to the 
writing of notes protesting such practices. Referring to 
the period subsequent to the German war zone declara- 
tion of January 31, 1917, the British War Cabinet re- 
ported : 

" Two steps were taken to deal with the situation. In the first 
place the Blockade Order in Council of the 16th February, 1917, 
was issued, the effect of which was to make vessels trading to and 
from neutral ports in Europe liable to the risk of capture and con- 
demnation if they were found attempting to evade calling for 
examination at a British port; and, in the second place, it was 
announced through the public press that neutral vessels would, on 
certain conditions, be allowed the privilege of calling for examina- 
tion at certain British ports outside the United Kingdom such as 
Halifax in Nova 'Scotia instead of at Kirkwall, and that British 
bunker coal would only be allowed to those neutral vessels which 
undertook to call at an appointed British port and perform certain 
services in return. Concurrently with these measures insurance 
on favorable terms was laid open to all vessels engaged in trading 
in the Allied interests, and His Majesty's Government further 
offered to hire or purchase large blocks of neutral shipping. 

" These expedients have, on the whole, worked exceedingly well. 
There has been no serious attempt to break the blockade ; and, on 
the other hand, the power to give or refuse what are called Halifax 


facilities — that is to say, the privilege of being examined outside 
the danger zone — has furnished us with a powerful inducement to 
neutral shipowners to comply with the various blockade and ship- 
ping requirements that we have put forward.'' (1918 Naval War 
College, International Law Documents, p. 94.) 

While there was in international law no rule requiring 
neutral vessels voluntarily to go to a belligerent port of 
either belligerent for examination, such action might be 
made advantageous by exempting from liability the ves- 
sels which had conformed to the order, or coal and other 
supplies might be withheld from vessels which had not 
conformed to the order. If neutral vessels proceed to 
belligerent ports for examination for their own conven- 
ience or advantage, they cannot complain on account of 
delay or risks encountered. Neither can they complain 
if on reasonable suspicion they are taken in by a prize 
crew or escorted in by a vessel of the belligerent forces. 

The ordering of a neutral merchant vessel to proceed 
to a named port without prize crew or escort is beyond 
the legal competence of a belligerent, and the merchant 
vessel incurs no liability for disregarding such order and 
is under no obligation to agree to proceed by itself to a 
port named by a belligerent visiting vessel. 

If the submarine had the right to order the Saba to 
agree to proceed to port Xena of state X under penalty 
of being sunk, it might be maintained that the submarine 
might by radio transmit such orders to all neutral 
merchant vessels at sea, and then sink such as were not 
obeying the order. Manifestly no such practice is up- 
held by international law. 

The obligation to " proceed as directed " would there- 
fore, if within the lawful rights of belligerents, imply 
that the directing force was on board the neutral mer- 
chant vessel in a prize crew or escorting the vessel as by 
an accompanying cruiser. 

Threat by government agent. — The commander of the 
submarine is a government agent of the state. His word 


?s in effect the expression of the will of his state. State 
X is responsible for the acts of the commanders of its 
submarines. The master of the Saba may know that a 
submarine commander's right to regulate the movements 
of a neutral merchant vessel under the circumstances pre- 
vailing in the case of the Saba are limited to placing a 
prize crew on board, or escorting the Saba to port, thus 
maintaining a continuing effective control. 

The authority of the commander of a belligerent vessel 
of war is limited by the degree of force at his disposal. 
If he cannot spare a prize crew, or cannot leave the area 
of his operations to escort a prize to port, he must release 
the vessel and any action beyond this is in excess of his 
lawful authority, unless permitted by treaty agreement 
to which the belligerent state and the neutral state con- 
cerned are parties. The Saba would be under obligation 
by treaty to " deliver up " the contraband. The Saba 
would be under no lawful obligation to agree to change 
its course or to proceed to Xena, nor would an agreement 
made under such compulsion be valid. 

The commander of the submarine has no lawful au- 
thority to make or to enforce a threat to sink the Saba 
because it does not agree to change its course and proceed 
to Xena. 


(a) The No. S was on a lawful voyage when met by the 

The Yoba could seize the No. 5 and bring her to a prize 
court of Y. 

Except in the case of urgent military necessity conver- 
sion before adjudication would not be lawful and in any 
case full compensation must be made for N's loss. 

(b) The No. 5 after installing its equipment in state M 
and sailing for state X should be brought to a prize court. 

Except in case of urgent military necessity conversion 
before adjudication would not be lawful. 


States X and M have no responsibility nor would Y 
have any responsibility as the No. 5 is bound for X, a 
belligerent destination. 

(c) The No. 6 should be interned by state R. 
The construction of the No. 6 in state R is lawful. 

(d) The Saba is under legal obligation to " deliver up " 
the contraband. The Saba is under no legal obligation 
to agree to change its course and to proceed to port Xena, 
though it would be under obligation to go if accompanied 
by the submarine or in control of a prize crew. 

Situation III 


States X and Y are at war. All states other than 
state D declare neutrality. State Y has no seacoast. 
The Black River is the common boundary of X and Y 
for 100 miles. Y has private merchant vessels and air- 
craft under its flag. All vessels and aircraft of Y are 
registered at Yara, the capital of Y. Some of the mer- 
chant vessels of Y have had their decks strengthened so 
that they may take on 6-inch guns. Some of these 
vessels have already installed these guns. X has vessels 
and aircraft of the same character under its flag. 

(a) State A under its proclamation of neutrality ex- 
cludes from its waters both types of vessels of X and Y, 
and all vessels of war and vessels assimilated thereto. 

(b) State B refuses to admit vessels of X and Y with 

(c) State C, adjoining state Y, refuses to permit an 
aircraft of Y to fly over its territory to a vessel of Y 
which is at sea. 

(d) State D, a maritime state, refuses to grant to 
either X or Y any rights which might flow from a decla- 
ration of war or to accept any neutral obligations so far 
as aerial or maritime acts are concerned, on the ground 
that the war must be confined to the land territory of 
X and Y. 

What are the lawful rights of the parties — 

(1) If the Black River is navigable to Yara? 

(2) If the Black River is not navigable to any point 
in state Y? 




(a) State A may lawfully in its proclamation of 
neutrality exclude all vessels of war and vessels assimi- 
lated thereto. This would apply to armed merchant 
vessels, but ordinarily not to unarmed merchant vessels 
whether or not decks had been strengthened. 

(b) State B may lawfully refuse to admit vessels of 
war of X and Y with prize except on account of unsea- 
worthiness, stress of weather, or lack of fuel or supplies. 

(c) State C may lawfully refuse to permit aircraft of 
Y to fly over its territory to a vessel of Y which is at sea. 

(d) State D may not lawfully refuse to grant to X 
and Y rights which might flow from a declaration of 
war or refuse to accept any neutral obligations so far 
as aerial or maritime acts are concerned though the 
geographical location of state D might make special 
regulations justifiable. 


Status in time of conflict. — The recognition of belliger- 
ent and of neutral status has been of slow growth. The 
recognition of belligerent status and the gradual deter- 
mination of the rights appertaining to this status can be 
traced before the sixteenth century but from that time 
the recognition is clear and the determination of rights 
is marked. Gentilis (1588) defined war as "a properly 
conducted contest of armed public forces." (De jure belli, 
bk. I, ch. 2.) Since that time further attempts have been 
made to set bounds to the status of belligerency, such as 
regards the beginning of war in the Hague Convention 
III, 1907, providing that hostilities between the contract- 
ing parties should " not commence without previous and 
explicit warning " and in Convention II providing against 
the employment of force for the recovery of contract 
debts claimed from one government by another govern- 
ment as due to its nationals unless the debtor state fails 


to respond to arbitral methods. These limitations upon 
time and cause of war have in practice seemed to meet 
general approval. Other attempts to limit the actual con- 
duct of war have also been elaborated and even in the 
strain of the time of belligerency the conventions relating 
to the rules and customs of war on land and sea have 
in large measure been respected and departures from these 
rules have been widely condemned. 

The laws of neutrality have been developing and many 
of these were embodied in the Hague conventions of 1899 
and 1907 and in the unratified Declaration of London 
of 1909. The Declaration of Paris of 1856 has received 
approval of most of the states of the world. 

The rules of war and of neutrality, written and un- 
written, have been the subject of many court decisions 
which serve to define the limits of lawful action. 

Diplomatic and other negotiations have also clarified 
the understanding and application of these rules. 

The rules and customs of war on land and sea at any 
particular period have not been found clearly applicable 
to every problem to which war might give rise, but con- 
sidering difference in character and interests of the par- 
ties at war, the effect has been generally approved as aid- 
ing in progress toward removing of grounds of interna- 
tional friction. Sudden and marked attempts to change 
established rules have unsettled conditions and multi- 
plied the possibilities of friction and misunderstandings. 
International laws of war and of neutrality have tended 
to regard custom and precedent while recognizing the 
force of changing conditions. 

It is true that at times a state has conceived that its 
interests might be better served by a course of action not 
in accord with international law, but such a condition has 
not been regarded in practice or in the courts as sufficient 
ground for setting aside accepted law or for proclaiming 
a purpose of following a policy at wide variance with 
international law though exceptional conditions have 


been from time to time admitted as ameliorating obli- 

War and neutrality. — When two or more states are at 
war. other nonparticipating states are generally neutral. 
It is customary for states to issue declarations of neutral- 
ity, often outlining the course of conduct they propose to 
follow. If the neutral states are strong, the course of con- 
duct prescribed in the proclamations will probably be 
followed. If the neutral states are weak or timid or both, 
the belligerents will tend to override the prescriptions 
whenever it can be advantageously done. 

While it is presumed that states which take no part in 
the war are neutral, it is not necessarily true that uncer- 
tainty may not arise in case a declaration does not exist, 
is withdrawn, or modified. 

There are rules which are accepted as generall} 7 bind- 
ing, yet from the nature of conditions in different areas 
special regulations may be reasonable and neutrality reg- 
ulations have varied greatly. 

The content of the idea of neutrality is not fixed and 
no concept of neutrality has existed sufficiently long to 
make its continuance assured. Grotius in his great treat- 
ise, De Jure Belli ac Pads, in 16*25 gave little attention to 
the subject, but Bynkershoek early in the next century 
gave a £>ood definition of neutrality, a status which was 
then in fact uncommon in interstate relations. At the 
end of the eighteenth century the idea of neutrality was 
somewhat further defined by the practice of the United 
States following the proclamation of "Washington of De- 
cember 3. 1793. in which, while not mentioning " neu- 
trality ", he asserts that the United States " should with 
sincerity and good faith adopt and pursue a conduct 
friendly and impartial toward the belligerent powers." 
Neutrality laws were subsequently enacted by many 
states. The fundamental idea was as Bynkershoek said 
to be " of neither party." 

It has been pointed out that in some conditions an 
attitude of impartiality might be as valuable as an alii- 


ance. This might be the case when one of the belliger- 
ents lacked entirely an article essential to the conduct of 
war which a nearby neutral could furnish in unlimited 
quantity without risk of interference from the other 
belligerent. Such situations have given rise to discus- 
sions in regard to the obligations of neutrals to accom- 
modate their conduct to the geographic relationship of 
the belligerents, so that one might not be benefited more 
tli an the other. 

Protests have been made by one belligerent to the 
effect that the nationals of a neutral should not sell to 
another belligerent goods which were of a nature to 
aid in carrying on the war, particularly if the protesting 
belligerent was not in position to take advantage of such 
trade. Such protests have not been regarded as valid 
as is evident in the correspondence during war. 

A circular of the Department of State of the United 
States early in the World War, October 15, 1914, states : 

" In the first place it should be understood that, generally speak- 
ing, a citizen of the United States can sell to a belligerent gov- 
ernment or its agent any article of commerce which he pleases. 
He is not prohibited from doing this by any rule of international 
law, by any treaty provisions, or by any statute of the United 
States. It makes no difference whether the articles sold are ex- 
clusively for war purposes, such as firearms, explosives, etc., or 
are foodstuffs, clothing, horses, etc., for the use of the army or 
navy of the belligerent. 

" Furthermore, a neutral government is not compelled by in- 
ternational law, by treaty, or by statute to prevent these sales 
to a belligerent. Such sales, therefore, by American citizens do 
not in the least affect the neutrality of the United States. 

" It is true that such articles as those mentioned are considered 
contraband and are, outside the territorial jurisdiction of a neu- 
tral nation, subject to seizure by an enemy of the purchasing 
government, but it is the enemy's duty to prevent the articles 
leaching their destination, not the duty of the nation whose citi- 
zens have sold them. If the enemy of the purchasing nation hap- 
pens for the time to be unable to do this that is for him one of 
the misfortunes of war; the inability, however, imposes on the 
neutral government no obligation to prevent the sale." (1916 
Naval War College, International Law Topics, p. 95.) 


Status of Brazil, 1917. — Brazil by Decree of August 4, 
1914, declared its neutrality, broke diplomatic relations 
with Germany, April 11, 1917, revoked its neutrality, 
June 4, 1917, and declared war against Germany, Octo- 
ber 26, 1917. There was uncertainty as to the status of 
Brazil during the period from June 4, 1917, when Brazil 
revoked its neutrality and October 26, 1917, when Brazil 
declared war. The note on revocation of neutrality of 
June 4, 1917, as addressed by the Brazilian Ambassador 
to the Secretary of State of the United States was as 
follows : 

" Washington, June 4, 1911. 

"Mr. Secretary of State: The President of the Republic has 
just instructed me to inform your excellency's Government that 
he has approved the law which revokes Brazil's neutrality in the 
war between the United States of America and the German Em- 
pire. The Republic has thus recognized the fact that one of the 
belligerents is a constituent portion of the American Continent 
and that we are bound to that belligerent by traditional friend- 
ship and the same sentiment in the defense of the vital interests 
of America and the accepted principles of law. 

" Brazil ever was, and is now, free from warlike ambitions, and 
while it always refrained from showing any partiality in the 
European conflict, it could no longer stand unconcerned when 
the struggle involved the United States actuated by no interest 
whatever but solely for the sake of international judicial order 
and when Germany included us and the other neutral powers in 
the most violent acts of war. 

" While the comparative lack of reciprocity on the part of the 
American republics has hitherto divested the Monroe Doctrine of 
its true character, permitting an interpretation based on the pre- 
rogatives of their sovereignty, the present events, now bringing 
Brazil to the side of the United States at a critical moment in 
the history of the world, continue to impart to our foreign policy 
a practical form of continental solidarity; a policy, however, 
which was also that of the former regime whenever one of the 
other sister friendly nations of the American Continent was con- 
cerned. The Republic has strictly observed our political and 
diplomatic traditions and remained true to the liberal principles 
in which the nation was nutured. 

"Thus understanding our duty, and taking the position indi- 
cated by Brazil's antecedents and the conscience of a free people, 


whatever developments the morrow may have in store for us, 
we shall conserve the constitution which governs us and which 
has not yet been surpassed in the guaranties due to the rights, 
lives, and property of foreigners. 

" In bringing the above stated resolution to your excellency's 
knowledge I beg you to be pleased to convey to your Government 
the sentiments of unalterable friendship of the Brazilian people 
and Government. 

Domicio da Gama." 
(Foreign Relations, 1917, Supplement I, p. 294.) 

In acknowledging this communication from Brazil the 
acting Secretary of State of the United States said : 

" Washington, June 16, 1917. 

" Excellency : I have the honor to acknowledge the receipt of 
your note of June 4, by which, in pursuance of instructions from 
the President of Brazil, you inform me of the enactment of a 
law revoking Brazil's declaration of neutrality in the war between 
the United States and Germany, and request me to convey to this 
Government the sentiments of unalterable friendship of the 
Brazilian people and Government. 

" I have received with profound gratification this notification 
of the friendly cooperation of Brazil in the efforts of the United 
States to assist in the perpetuation of the principles of free gov- 
ernment and the preservation of the agencies for the ameliora- 
tion of the sufferings and losses of war, so slowly and toilfully 
built up during the emergence of mankind from barbarism. 

" Your Government's invaluable contribution to the cause of 
American solidarity, now rendered more important than ever as 
a protection to civilization and a means of enforcing the laws of 
humanity, is highly appreciated by the United States. 

" I shall be glad if you will be good enough to convey to the 
President, the Government, and the people of Brazil, the thanks 
of this Government and people for their course, so consistent 
with the antecedents of your great and free nation and so im- 
portant in its bearing on issues which are vital to the welfare of 
all the American republics. 

" Requesting that you will also assure your Government and 
people of most cordial reciprocation by the Government and people 
of the United States of their assurances of friendship, always so 
greatly valued, and now happily rendered still warmer and closer 
by the action of Brazil, I avail my self [etc.]. 

(Ibid., p. 300.) 

Frank L. Polk." 


Other South and Central American States took action 
of a similar nature supporting American solidarity. 
Some of these states were unable to engage in aggressive 
hostilities toward Germany but did not maintain neu- 
trality, and by permitting use of ports to the Allies and 
by other conduct manifested an attitude of passive 
hostility toward the Central Powers. 

Apparently even in Brazil the breaking of diplomatic 
relations and the expression toward the United States 
of "the sentiments of unalterable friendship of the Bra- 
zilian people and Government " did not involve definite 
participation in the war for it was not till more than 4 
months later that Brazil declared war against Germany. 
The Department of State of the United States announced 
on October 26, 1917, that it had been informed that the 
Brazilian Senate at 6 : 20 o'clock, Friday afternoon, Octo- 
ber 26, 1917, had voted the declaration of war against 
Germany which had been approved by the Chamber at 
3 o'clock. 

"A state of war between Brazil and the German Empire, pro- 
voked by the latter, is hereby recognized and proclaimed, and the 
President of the Republic, in accordance with the request con- 
tained in his message to the National Congress, is hereby author- 
ized to take such steps for the national defense and public safety 
as he shall consider adequate, to open the necessary credits and 
to authorize the credit operations required. All previous measures 
to the contrary are hereby revoked." (Ibid., p. 65.) 

There was thus a period under neutrality regulations, 
August 4, 1914, to June 4, 1917, during a part of which, 
April 11 to June 11, 1917, diplomatic relations with Ger- 
many were severed. This period was followed by a 
period during which diplomatic relations were still sev- 
ered and neutrality revoked and a recognition of the 
American " continental solidarity " was announced and a 
spirit of friendship for the United States was expressed 
but without declaration of war till October 26, 1917. 

Costa Rica in World War, 1914-18. — In spite of the re- 
fusal of the United States to recognize the revolutionary 


government of Tinoco in Costa Rica in 1917, Tinoco's 
Secretary of State for Foreign Affairs informed the 
American Minister to Costa Rica of the attitude of the 
government of Tinoco, April 3, 1917 : 

" Government of Tinoco expresses desire to make known that 
without taking into account recognition on behalf of the Govern- 
ment of the United States in any emergencies which arise be- 
tween Germany and the United States by reason of the relations 
in which these two countries find themselves to-day, Government 
of Costa Rica not only is disposed to observe towards the United 
States a benevolent neutrality but also to prevent development 
upon its territory of any hostility against them." (Foreign Rela- 
tions, U. S., 1917, Supplement 1, p. 243.) 

Like Brazil, Costa Rica expressed in a note of April 9, 
1917, the idea of American " solidarity " and also offered 
the use of its ports and waters to the navy of the United 
States. Costa Rica did not, however, break diplomatic 
relations with Germany till September 1, 1917, and de- 
clared war on May 24, 1918. 

State without seacoast. — There has been some argument 
that when a state without a seacoast is at war with a 
state having a seacoast, other maritime and neutral states 
should in their neutrality proclamations embody such re- 
strictions as would equalize the conditions of the belliger- 
ent states as respects commerce. Such a practice might 
imply that the neutral maritime states should prohibit 
commerce in articles of contraband and destined to the 
belligerent maritime state while territorially adjacent 
states might carry on commerce with both belligerents. 
The doctrine of continuous voyage has become too well 
established to easily adapt itself to such conditions. If 
the landlocked state is to be permitted to have its flag 
upon the sea and upon aircraft above the sea, it might 
create a privileged position for the state without a sea- 
coast and this geography does not do. 

World War treaties on flags. — The Treaty of Ver- 
sailles, June 28, 1919, made provision for the recognition 
of flags flown by vessels of states having no seacoast. 


Article 273 stated : 

" In the case of vessels of the Allied or Associated Powers, all 
classes of certificates or documents relating to the vessel, which 
were recognized as valid by Germany before the war, or which 
may hereafter be recognized as valid by the principal maritime 
States, shall be recognized by Germany as valid and as equivalent 
to the corresponding certificates issued to German vessels. 

"A similar recognition shall be accorded to the certificates and 
documents issued to their vessels by the Governments of new 
States, whether they have a sea-coast or not, provided that such 
certificates and documents shall be issued in conformity with the 
general practice observed in the principal maritime States. 

" The High Contracting Parties agree to recognise the flag 
flown by the vessels of an Allied or Associated Power having no 
sea-coast which are registered at some one specified place situated 
in its territory ; such place shall serve as the port of registry of 
such vessels." (1919 Naval War College, International Law 
Documents, p. 120.) 

By article 153 of the Treaty of Neuilly, November 27, 
1919, Bulgaria agrees to the same provisions as to the 
flag as those in the Treaty of Versailles. Article 225 of 
the Treaty of Saint-Germaine-en-Laye, September 10, 
1919, contained the same provision relating to Austria 
except that the words " any contracting party " were 
substituted for the words " an Allied or Associated 
Power." This article was identical with article 209 of 
the Treaty of Trianon, June 4, 1920, with Hungary. 

In article 102 of the Treaty of Lausanne, July 24, 1923, 
Turkey undertakes to adhere to the Barcelona Conven- 
tion of April 20, 1921. 

Barcelona Convention, 1921. — The regulation of transit 
on land and sea was at the close of the World War re- 
garded as a matter of capital world importance. A con- 
ference for the purpose of reaching agreement on this 
subject was held at Barcelona early in 1921, and on April 
20 reached the following agreement as to the use of the 
national flag upon vessels belonging to states which have 
no seacoast: 

" The undersigned, duly authorised for the purpose, declare 
that the States which they represent recognise the flag flown by 


the vessels of any State having no soacoast which are registered 
at some one specified place situated in its territory; such place 
shall serve as the port of registry of such vessels. 

" Barcelona, April the 20th, 1921, done in a single copy of which 
the English and French texts shall be authentic." (7 LNTS, p. 73; 
1924 Naval War College, International Law Documents, p. 83.) 

Article XIV, Washington Treaty, 1922.— Article XIV 
of the Washington Treaty of 1922 on the Limitation of 
Naval Armament provided that: 

" No preparations shall be made in merchant ships in time of 
peace for the installation of warlike armaments for the purpose 
of converting such ships into vessels of war, other than the neces- 
sary stiffening of decks for the mounting of guns not exceeding 6 
inch (152 millimetres) calibre." (1921 Naval War College, Inter- 
national Law Documents, p. 299.) 

This article did not receive much attention in the way 
of discussion in the Washington Conference. It consti- 
tutes a limitation upon construction in the time of peace 
of vessels which might be converted in time of war. Such 
vessels might be treated by the opposing belligerent as 
potential auxiliary vessels, but there would not necessarily 
be any evidence apparent to a neutral which would be 
convincing as to the nature of the vessel. 

Under article XIV a belligerent finding a merchant ves- 
sel of an enemy, the decks of which are stiffened for the 
mounting of guns, would be competent to decide upon the 
treatment of such a vessel as a potential vessel of war. 

In the Second Hague Conference, 1907, the convention 
relating to the status of enemy merchant ships at the out- 
break of hostilities stated in article 5 that the article 
relating to days of grace for enemy merchant ships " does 
not affect merchant ships whose build shows that they 
are intended for conversion into warships." This article 
seems to be entirely reasonable, as a belligerent could not 
be expected to grant release to an enemy vessel which 
is in his power and which if released is adapted to con- 
version into an enemy vessel of war. 



A belligerent would not only have the right to inspect 
a merchant vessel of an enemy in order to determine 
whether it is adapted for conversion into a vessel of war, 
but this would also seem to be an essential precaution. 

A neutral in the ordinary exercise of due diligence 
would, however, be concerned with the entrance and so- 
journ within its waters of vessels of belligerents which 
had already been converted into vessels of war or which 
from external appearances were to be used for hostile 
purposes. There is no obligation resting upon a neutral 
to make an examination of the structural character of a 
ship before permitting it to enter its ports nor can a 
neutral be expected to know the intention as to the ulti- 
mate use of a vessel which may enter or be in its ports. 
If a belligerent vessel, with guns mounted or from its 
external appearance already adapted to engage in hos- 
tilities, enters a neutral jurisdiction, the neutral may 
prescribe or deny it such privileges as may correspond 
to the neutral's conception of its obligations or rights. 
The neutral state may forbid the use of its waters to 
•• vessels of war or vessels assimilated thereto " and if 
permitting entrance, may prescribe the conditions of 

It is also for the neutral state to determine what ves- 
sels are assimilated to vessels of war. The attitude of a 
neutral state may depend upon many circumstances, such 
as geographical proximity, commercial relations, etc. If 
the merchant vessels of X, having decks stiffened for the 
mounting of guns, have all been built in neutral state N, 
it may be presumed that state X may know of this or 
may have it brought to its attention. By article XIV 
of the Washington Convention, the purpose of stiffening 
of decks is stated and state N may be desirous of avoid- 
ing any act or failure to act which might imply a non- 
fulfillment of neutral obligations. 

Admission of vessels of war. — Hall in referring to a 
vessel converted by government commission into a public 
vessels savs : 


" But though, if a vessel so commissioned is admitted at all 
within the ports of the neutral, it must be accorded the full priv- 
ileges attached to its public character, there is no international 
usage which dictates that ships of war shall be allowed to enter 
foreign ports, except in cases of imminent danger or urgent need. 
It is fully recognised that a state may either refuse such admis- 
sion altogether, or may limit the enjoyment of the privilege by 
whatever regulations it may choose to lay down " (International 
Law, 8th edition, p. 746.) 

Regulation of entrance of vessels of war. — Neutrals 
have maintained the right to regulate the entrance and 
sojourn of vessels of war. The regulations have some- 
times been drawn up before the war and sometimes pro- 
claimed after the war. Objections have been raised to 
regulations proclaimed after the war but these have not 
been sustained because a neutral has the right to take 
action for preserving its neutrality. 

Identic rules were agreed to by Denmark, Norway, and 
Sweden in December 1912 as follows: 

" War vessels of belligerent powers are permitted to enter ports 
and roadsteads as well as other territorial waters of the kingdom. 
At the same time admission is subject to the exceptions, restric- 
tions, and conditions which follow : 

" 1. (a) It is forbidden belligerent war vessels to enter the 
ports and roadsteads of war, which have been proclaimed as such. 

"(b) It is also forbiddent such vessels to enter territorial 
waters whose entrances are closed by submarine mines or other 
means of defense. 

" (c) The King reserves the right to forbid under the same 
conditions to the two belligerent parties, access to other Norwe- 
gian ports or roadsteads and other defined parts of the interior 
Norwegian waters, when special circumstances demand and for 
safeguarding the sovereign rights of the kingdom and to maintain 
its neutrality. 

" (d) The King also reserves the right to forbid access to ports 
and roadsteads of the kingdom to belligerent war vessels which 
have neglected to conform to rules and prescriptions promulgated 
ty the competent authorities of the kingdom and which have vio- 
lated its neutrality." (1917 Naval War College, International 
Law Documents, p. 184.) 

Vessels assimilated to vessels of war. — The treatment 
of vessels assimilated to vessels of war has varied in 


many ways and in different states. The practice in re- 
gard to armed merchant vessels was somewhat fully 
considered at the Naval War College in 1927 (1927 Naval 
War College, International Law Situations, pp. 
73-105), showing wide divergence in practice and a drift 
toward treating armed merchant vessels under the same 
rules as vessels of war. 

Many states put restrictions upon the entrance of 
vessels which might from their equipment participate in 
the war either directly by engaging in hostilities or in- 
directly by supporting the belligerents as auxiliaries. 
Certain states permitting entrance of armed merchant 
vessels restricted such armament to defensive armament, 
but found difficulty in making the distinction between 
such vessels as were intended for purposes of war and 
those which were not so intended. So many contro- 
versies arose on this matter that the safe course seemed to 
be to treat armed vessels as vessels of war. 

The Netherlands regulations of August 5, 1914, issued 

before the controversy had become acute, state : 

" Article 4. No warships or ships assimilated thereto belong- 
ing to any of the belligerents shall have access to the said 
territory. " 

An earlier proclamation of JuJy 30, 1914, stated : 

"Article 2. As long as the Order mentioned in Article I 

(Royal Order of October 30, 1909) is not in force, it is forbidden 

to war ships or similar vessels of foreign powers to enter the 

Netherlands territorial waters from the sea or to remain therein. " 

Of course regulations did not exclude ships in distress. 

Territorial waters. — The proclamation excluding ves- 
sels of war and vessels assimilated thereto from terri- 
torial waters has been further complicated by varying at- 
titudes upon the extent of territorial waters. While 
some states have accepted the 3-mile limit, other states 
have maintained claims to 4, 5, 6, 10, or more miles as the 
proper line. In the early part of the World War the 
Italian Ambassador at Washington in a note to the Sec- 
retary of State said on November 6, 1914 : 


" By note of August 13 last the Royal Embassy had the honor 
to inform your excellency that under a Royal decree of the 6th 
of that month the limit of territorial waters, for the purposes of 
neutrality, had been set at six nautical miles, and certain special 
rules were laid down for the delimitation of such territorial 
waters in bays, bights, and gulfs in accordance with Article 2 of 
said decree. In a subsequent note of September 8 the Royal 
Embassy quoted for your excellency's due information the text 
of the provisions contained in the said article of the Royal decree. 
Your excellency was pleased to acknowledge the said communi- 
cations by your notes of August 17 and September 19. 

" Whether because of the fact that the limits of the marginal 
sea are not regulated by international conventions or general rules 
of international law — thus leaving every state at liberty to fix 
them within the sphere of its own sovereignty without subjecting 
its decision to the recognition of the other states — or because of 
the fact that no comment was made by your excellency on the 
Royal Embassy's communications, His Majesty's Government 
knows that no objections are made by the Federal Government 
to the six-mile limit set by us on our territorial waters for the 
purpose of neutrality. 

" Yet, with a view to removing any possible uncertainty, His 
Majesty's Government would be very thankful for a declaration 
which would explicitly convey acceptance by the Federal Govern- 
ment of the decision as adopted. And, in compliance with in- 
structions I have just received on the subject, I have the honor 
to apply to your excellency's tried courtesy for such a declara- 
tion." (Foreign Relations, U. S., 1914, Supplement, p. 665.) 

This note made it necessary for the United States to 
reply or tacitly to admit that 6 miles might be a lawful 
claim to jurisdiction. This the United States was un- 
willing to do and the reply from the Acting Secretary of 
State on November 28, 1914, was as follows : 

" I have the honor to acknowledge receipt of your excellency's 
note of November 6, 1914, having reference to your previous notes 
of August 13 and September 8 last, the first of which notes con- 
tained announcement that by a Royal decree of the Italian Gov- 
ernment, dated August 6, 1914, the limits of its territorial waters 
were set at six nautical miles from the shore, and the latter of 
which notes quoted the text of article 2 of that decree, prescrib- 
ing rules for the determination of the territorial waters in the 
bays, bights, and gulfs which indent the Italian shore. Of these 
notes I had the honor to acknowledge receipt, respectively, on 
August 17 and September 19 last gone. 


" In your note of November 6 your excellency says that in order 
to remove any possible uncertainty respecting the position of this 
Government, you will appreciate an explicit declaration on behalf 
of the United States accepting the decision of the Italian Govern- 
ment as embodied in the Royal decree referred to. 

" I am compelled to inform your excellency of my inability to 
accept the principle of the Royal decree in so far as it may under- 
take to extend the limits of the territorial waters beyond three 
nautical miles from the main shore line and to extend thereover 
the jurisdiction of the Italian Government. 

"An examination into the question involved leads to the con- 
clusion that the territorial jurisdiction of a nation over the 
waters of the sea which wash its shore is now generally recognized 
by the principal nations to extend to the distance of one marine 
league or three nautical miles, that the Government of the United 
States appears to have uniformly supported this rule, and that 
the right of a nation to extend, by domestic ordinance, its juris- 
diction beyond this limit has not been acquiesced in by the Gov- 
ernment of the United States. 

" There are certain reasons, brought forward from time to time 
in the discussion of this question and advanced by writers on 
international law, why the maritime nations might deem the 
way clear to extend this determined limit of three miles, in view 
of the great improvement in gunnery and of the extended dis- 
tance to which, from the shore, the rights of nations could be 
defended ; but it seems manifestly important that such a con- 
struction or change of the rule should be reduced to a precise prop- 
osition and should then receive in some manner reciprocal ac- 
knowledgment from the principal maritime powers ; in fine, that 
the extent of the open or high seas should better be the result of 
some concerted understanding by the nations whose vessels sail 
them than be left to the determination of each particular nation, 
influenced by the interests which may be peculiar to it." (Ibid., 
p. 665.) 

Internment of the "Fam ", 1915. — Just what vessels 
may be included in the category of vessels assimilated to 
vessels of war has not been specifically determined. 
Armament or flag might be the determining factor in 
some cases, and conduct might be considered in other 
cases. Use was offered as the ground of internment of the 
Fam in 1915. The Secretary of State, in reply to a com- 
munication of the British Ambassador requesting the re- 
lease of the Fam as being a prize brought into San Juan 


and not departing at once in accord with article 21 of 
Hague Convention XIII, said: 

" I have the honor to acknowledge the receipt of your excel- 
lency's note of the 26th ultimo in relation to the steamship 
Farn, or KD-3, which has been interned in the port of San Juan, 
Porto Rico, as a tender to a belligerent fleet. The Department is 
advised that the Farn left Cardiff about September 5, 1914, for 
Montevideo, with a clause in her charter to deliver coal to war- 
ships if they so desired. Though, as you state, the vessel was 
not employed as a collier, or otherwise, in the Admiralty service, 
this fact would not in the opinion of the Department affect her 
status at the time of internment if she indeed acted as a collier 
or auxiliary to a belligerent fleet. It is understood that the 
Farn was a British merchant vessel ; that she had on board a 
cargo of Cardiff coal amounting to some 3,000 tons ; that she was 
captured by the German cruiser Karlsruhe on October 5 ; that 
the cruiser placed a prize crew and officers on board ; and that 
notwithstanding the known practice of the Karlsruhe to sink 
her enemy prizes, the vessel had been at sea continuously since 
the date of capture until she put into the port of San Juan on 
January 12 last for provisions and water. The Department be- 
lieves that the only reasonable conclusion in the circumstances, 
is that between October 5 and January 12 the Farn was used as 
a tender to German warships. It appears obvious that a bel- 
ligerent may use a prize in its service and that the prize there- 
by becomes stamped with a character dependent upon the nature 
of the service. It is upon this view of the case that the United 
States Government concluded to treat the vessel as a tender, 
which character accords with her presumed service to the Ger- 
man fleet." (Foreign Relations, U. S., 1915 Supplement, p. 823.) 

Ai^ned merchant vessel. — The problem of the armed 
merchant vessels perplexed neutrals during the World 
War and was the subject of many exchanges of diplo- 
matic notes. A proposal which brought the issue clearly 
to the attention of the belligerents was made by Secre- 
tary Lansing in January 1916. The communication of 
January 18. 1916, which was sent to the British, French, 
and Russian ambassadors and the Belgian minister dis- 
cusses the use of submarines in the war up to that date. 
This document, which has been often cited, contains com- 
ments on what Secretary Lansing terms " a doubtful legal 
right " and expresses the hope that the belligerents may 


agree to a reciprocal and reasonable arrangement with 
view to ending submarine attacks upon merchant vessels : 

" In order to bring submarine warfare within the general rules 
of international law and the principles of humanity without de- 
stroying its efficiency in the destruction of commerce, I believe 
that a formula may be found which, though it may require slight 
modifications of the practice generally followed by nations prior 
to the employment of submarines, will appeal to the sense of jus- 
tice and fairness of all the belligerents in the present war. 

" Your excellency will understand that in seeking a formula or 
rule of this nature I approach it of necessity from the point of 
view of a neutral, but I believe that it will be equally efficacious 
in preserving the lives of all non-combatants on merchant vessels 
of belligerent nationality. 

" My comments on this subject are predicated on the following 
propositions : 

1. A non-combatant has a right to traverse the high seas in a 
merchant vessel entitled to fly a belligerent flag and to rely upon 
the observance of the rules of international law and principles of 
humanity if the vessel is approached by a naval vessel of another 

2. A merchant vessel of enemy nationality should not be at- 
tacked without being ordered to stop. 

3. An enemy merchant vessel, when ordered to do so by a 
belligerent submarine, should immediately stop. 

4. Such vessel should not be attacked after being ordered to 
stop unless it attempts to flee or to resist, and in case it ceases 
to flee or resist, the attack should discontinue. 

5. In the event that it is impossible to place a prize crew on 
board of an enemy merchant vessel or convoy it into port, the 
vessel may be sunk, provided the crew and passengers have been 
removed to a place of safety. 

" In complying with the foregoing propositions which, in my 
opinion, embody the principal rules, the strict observance of which 
will insure the life of a non-combatant on a merchant vessel which 
is intercepted by a submarine, I am not unmindful of the obstacles 
which would be met by undersea craft as commerce destroyers. 

" Prior to the year 1915 belligerent operations against enemy 
commerce on the high seas had been conducted with cruisers 
carrying heavy armaments. Under these conditions international 
law appeared to permit a merchant vessel to carry an armament 
for defensive purposes without losing its character as a private 
commercial vessel. This right seems to have been predicated on 


the superior defensive strength of ships of war, and the limita- 
tion of armament to have been dependent on the fact that it 
could not be used effectively in offense against enemy naval ves- 
sels, while it could defend the merchantman against the generally 
inferior armament of piratical ships and privateers. 

" The use of the submarine, however, has changed these rela- 
tions. Comparison of the defensive strength of a cruiser and a 
submarine shows that the latter, relying for protection on its 
power to submerge, is almost defenseless in point of construction. 
Even a merchant ship carrying a small caliber gun would be able 
to use it effectively for offense against a submarine. Moreover, 
pirates and sea rovers have been swept from the main trade chan- 
nels of the seas, and privateering has been abolished. Conse- 
quently, the placing of guns on merchantmen at the present day 
of submarine warfare can be explained only on the ground of a 
purpose to render merchantmen superior in force to submarines 
and to prevent warning and visit and search by them. Any arma- 
ment, therefore, on a merchant vessel would seem to have the 
character of an offensive armament. 

11 If a submarine is required to stop and search a merchant 
vessel on the high seas and, in case it is found that she is of 
enemy character and that conditions necessitate her destruction, 
to remove to a place of safety all persons on board, it would 
not seem just or reasonable that the submarine should be com- 
pelled, while complying with these requirements, to expose itself 
to almost certain destruction by the guns on board the merchant 

" It would, therefore, appear to be a reasonable and recipro- 
cally just arrangement if it could be agreed by the opposing belli- 
gerents that submarines should be caused to adhere strictly to 
the rules of international law in the matter of stopping and search- 
ing merchant vessels, determining their belligerent nationality, 
and removing the crews and passengers to places of safety before 
sinking the vessels as prizes of war, and that merchant vessels 
of belligerent nationality should be prohibited and prevented from 
carrying any armament whatsoever. 

" In presenting this formula as a basis for conditional declara- 
tions by the belligerent governments, I do so in the full conviction 
that your Government will consider primarily the humane pur- 
pose of saving the lives of innocent people rather than the in- 
sistence upon a doubtful legal right which may be denied on 
account of new conditions." (Foreign Relations, U. S., 1916, Sup- 
plement, p. 146.) 

The American proposition was not adopted. 


Admission of submarines. — The British Government 
set forth its opinion in regard to the closing of neutral 
ports to submarines in a communication to the Secretary 
of State on July 3, 1916: 

" The enemy submarines have been endeavouring- for nearly 
eighteen months to prey upon the Allied and neutral commerce, 
and throughout that period enemy governments have never 
claimed that their submarines were entitled to obtain supplies 
from neutral ports. This must have been due to the fact that 
they thought they would be met with a refusal and that hos- 
pitality could not be claimed as of right. The difficulty of know- 
ing the movements or controlling the subsequent action of the 
submarines renders it impossible for the neutral to guard against 
any breaches of neutrality after the submarine has left port and 
justifies the neutral in drawing a distinction between surface 
ships and submarines. The latter, it is thought, should be 
treated on the same footing as seaplanes or other aircraft and 
should not be allowed to enter neutral ports at all. This is the 
rule prescribed during the present war by Norway and Sweden. 
Another point of distinction between surface ships and sub- 
marines should be borne in mind. A surface vessel demanding 
the hospitality of a neutral port runs certain inevitable risks; 
its whereabouts become known and an enemy cruiser can await 
its departure from port. This and similar facts put a check on 
the abuse by belligerant surface ships of neutral hospitality. No 
such disadvantages limit the use to which the Germans might 
put neutral ports as bases of supplies for submarine raiders. 

" For these reasons, in the opinion of His Majesty's Government, 
if any enemy submarine attempts to enter a neutral port, per- 
mission should be refused by the authorities. If the submarine 
enters it should be interned unless it has been driven into port by 
necessity. In the latter case it should be allowed to depart as 
soon as necessity is at an end. In no circumstances should it be 
allowed to obtain supplies. 

11 If a submarine should enter a neutral port flying the mercan- 
tile flag His Majesty's Government are of opinion that it is the 
duty of the neutral authorities concerned to enquire closely into 
its right to fly that flag, to inspect the vessel thoroughly and, in 
the event of torpedoes, torpedo tubes or guns being found on board, 
to refuse to recognise it as a merchant ship." (Foreign Relations, 
U. S., 1916, Supplement, p. 766.) 

It is difficult to reconcile this position, if taken in re- 
sard to a merchant submarine with the attitude of the 
British toward other armed merchant vessels. In August 


1916 the Allied Government in identic notes stated to 
the United States that : 

" Submarine vessels should be excluded from the benefit of the 
rules hitherto recognized by the law of nations regarding the 
admission of vessels of war or merchant vessels into neutral 
waters, roadsteads, or ports, and their sojourn in them. 

"Any belligerent submarine entering a neutral port should be 
detained there." (Ibid., p. 770.) 

In its reply the United States Government said : 

" In the opinion of the Government of the United States the 
Allied powers have not set forth any circumstances, nor is the 
Government of the United States at present aware of any circum- 
stances, concerning the use of war or merchant submarines which 
would render the existing rules of international law inapplicable 
to them. In view of this fact and of the notice and warning of 
the Allied powers announced in their memoranda under acknowl- 
edgment, it is incumbent upon the Government of the United 
States to notify the Governments of France, Great Britain, Russia, 
and Japan that, so far as the treatment of either war or merchant 
submarines in American waters is concerned, the Government of 
the United States reserves its liberty of action in all respects and 
will treat such vessels as, in its opinion, becomes the action of a 
power which may be said to have taken the first steps toward 
establishing the principles of neutrality and which for over a 
century has maintained those principles in the traditional spirit 
and with the high sense of impartiality in which they were con- 
ceived." (Ibid, p. 771.) 

Norway and other powers had indicated that they also 
regarded the existing principle of international law as 
applicable to submarines. 

American opinion, January 1917. — A case showing that 
the United States was endeavoring to clarify its position 
on armed merchant vessels arose in consequence of the 
action of the French S. S. Mississippi in late 1916. This 
is set forth in a letter from the Secretary of State to the 
French Ambassador: 

" Washington, January 6, 1917. 

"My Dear Mr. Ambassador: It has been brought to this De- 
partment's attention that on November 8 last the French S. S. 
Mississippi tired on a submarine in the English Channel prior to 
warning or attack by the submarine. This report is virtually con- 


firmed by the affidavits of the first lieutenant, the second captain, 
and the second lieutenant of the vessel, which is now at the port 
of New York. The following statement from the affidavit of the 
second lieutenant is pertinent: 

" ' My station was at the stern in command of the gun, and the 
captain told me to be prepared to fire at the submarine at a range 
of about 4,000 yards. The captain sent the second captain to the 
stern to instruct me to fire one shot when he gave the signal. The 
captain gave the signal by raising his hand and I fired one shot, 
and reloaded the gun and remained ready to fire another.' 

" The facts before the Department indicate that this action was 
initiated by the Mississippi and therefore offensive in its nature — 
a circumstance which might well be regarded as placing this vessel 
in the class of offensively armed ships, to which this Government 
is firmly convinced the hospitality usually granted to merchant- 
men in United States ports may be denied. As, however, this is 
the first instance of the sort which has come to my Government's 
notice, and out of regard to the possibility of a mistake in this 
case, the vessel will be allowed to depart as usual, on your Gov- 
ernment's assurance. I would, however, be remiss in my duty 
if I did not bring this case to your notice with the request that 
it be brought to your Government's attention, with the opinion 
of my Government, as herein expressed. 

" In this relation I attach a copy of instructions said to have 
been issued by your Government to merchant sea captains, and in 
force in October and November last on French vessels. These 
instructions (if genuine) lay the armament on merchant vessels 
of France open at least to the inference that its purpose is for 
offensive attack on submarines of the enemy. I have, therefore, 
to ask that you be good enough to advise me at the earliest mo- 
ment as to whether these instructions have been issued to the 
masters of French merchant vessels by your Government and are 
now in force. I would be grateful if you could inform me on 
these points as soon as possible. 

" I am, etc. Robert Lansing." 

(Foreign Relations, U. S., 1917, Supplement I, p. 544.) 

As the United States entered the war within a few 
months there seems to have been no answer to this com- 

Pnze mid neutral ports. — In early days as the laws of 
neutrality were developing, the practice in regard to re- 
ception of prizes in neutral ports varied. Treaties em- 


bodying differing principles were negotiated from time 
to time. 

In the case of the Appam, a British vessel captured in 
1917 off the west coast of Africa by the German cruiser 
Moewe, was brought into Hampton Roads, an American 
port more than 3,000 miles distant. The German conten- 
tion was that the bringing in and keeping of the Appam 
in an American port was justified under article 10 of the 
treaty of 1799 between the United States and Prussia. 
(8 U. S. Stat., 172.) In the decision upon the case of 
the Appam, the Supreme Court said : 

Article 19 of the treaty of 1799, using the translation adopted 
by the American State Department, reads as follows : 

" The vessels of war, public and private, of both parties, shall 
carry [conduire] freely, wheresoever they please, the vessels and 
effects taken [pris] from their enemies, without being obliged to 
pay any duties, charges, or fees to officers of admiralty, of the 
customs, or any others; nor shall such prizes [prises] be arrested, 
searched or put under legal process, when they come to and enter 
the ports of the other party, but may freely be carried [conduites] 
out again at any time by their captors [le vaisseau preneur] to 
the places expressed in their commissions, which the commanding 
officer of such vessel [le dit vaisseau] shall be obliged to show. 
(But conformably to the treaties existing between the United 
States and Great Britain, no vessel [vaisseau] that shall have 
made a prize [prise] upon British subjects shall have a right to 
shelter in the ports of the United States, but if [il est] forced 
therein by tempests, or any other danger, or accident of the sea, 
they [il sera] shall be obliged to depart as soon as possible.)" 
The provision concerning the treaties between the United States 
and Great Britain is no longer in force, having been omitted by 
the treaty of 1828 [8 Stat. L. 378]. See Compilation of Treaties in 
Force, 1904, pages 641 and 646. 

We think an analysis of this article makes manifest that the 
permission granted is to vessels of war and their prizes, which 
are not to be arrested, searched, or put under legal process when 
they come into the ports of the high contracting parties, to the 
end that they may be freely carried out by their captors to the 
places expressed in their commissions, which the commanding 
officer is obliged to show. When the Appam came into the Ameri- 
can harbor she was not in charge of a vessel of war of the German 
Empire. She was a merchant vessel, captured on the high seas 


and sent into the American port with the intention of being kept 
there indefinitely, and without any means of leaving that port for 
another, as contemplated in the treaty, and required to be shown 
in the commission of the vessel bringing in the prize. Certainly 
such use of a neutral port is very far from that contemplated by 
a treaty which made provision only for temporary asylum for cer- 
tain purposes, and can not be held to imply an intention to make 
of an American port a harbor of refuge for captured prizes of a 
belligerent Government. We can not avoid the conclusion that in 
thus making use of an American port there was a clear breach of 
the neutral rights of this Government, as recognized under prin- 
ciples of international law governing the obligations of neutrals, 
and that such use of one of our ports was in no wise sanctioned 
by the treaty of 1799. (242 U. S. Supreme Court Reports, 124; 
see also 1922 Naval War College, International Law Decisions, p. 

In general during the World War neutral states pro- 
hibited the entrance of prize to their territorial waters 
except in case of distress, shortage of fuel or coal. 

XIII Hague Convention, 1907, provided in regard to 
the entrance of prize to neutral waters, and the Ameri- 
can attitude toward these provisions was stated in the 
case of the Appwn cited above. 

" This policy of the American Government was emphasized in 
its attitude at The Hague Conference of 1907. Article 21 of The 
Hague treaty provides : 

" 'A prize may only be brought into a neutral port on account 
of unseaworthiness, stress of weather, or want of fuel or provi- 

" ' It must leave as soon as the circumstances which justified 
its entry are at an end. If it does not, the neutral power must 
order it to leave at once; should it fail to obey, the neutral power 
l.iust employ the means at its disposal to release it with its 
officers and crew and to intern the prize crew.' 

''Article 22 provides : 

"'A neutral power must, similarly, release a prize brought into 
cue of its ports under circumstances other than those referred to 
in article 21.' 

"To these articles, adherence was given by Belgium, France, 
Austria-Hungary, Germany, the United States, and a number of 
other nations. They were not ratified by the British Government 
This Government refused to adhere to article 23, which provides; 


a i 

'A neutral power may allow prizes to enter its ports and 
roadsteads, whether under convoy or not, when they are brought 
there to be sequestrated pending the decision of a prize court.' " 
(1922 Naval War College, International Law Decisions, p. 159.) 

Brazil in World War, 1914-18.— By decree no. 11,037 
of August 4, 1914, Brazil announced detailed rules of 
neutrality. The rules were reaffirmed as other states 
later joined in war. In earlier wars, Brazilian rules 
have also been very comprehensive. During the World 
War, Brazil from time to time modified the regulations. 

Article 20, which was issued on August 4, 1914, read as 
follows : 

"The captures made by a belligerent may only be brought to a 
Brazilian port in case of unseaworthiness, stress of weather, lack 
of fuel or food provisions, and also under the conditions pro- 
vided hereinbelow in Article 21st. 

" The prize must depart as soon as the cause or causes of her 
arrival cease. Failing that departure, the Brazil'an authoritj 
will notify the commander of the prize to leave at once, and. if 
not obeyed, will take the necessary measures to have the prize 
released with her officers and crew, and to intern the prize crew 
placed on board by the captor. 

" Any prize entering a Brazilian port or harbor, except under 
the aforesaid four conditions, will be likewise released." (1916 
Naval War College, International Law Topics, p. 13.) 

By degree no. 11.093 of August 24, 1914, a fifth condi- 
tion of entrance with prize was published as follows : 

"In any one of the hypotheses of the Articles 20 and 21 the 
Brazilian Government reserves to itself the right to demand the 
disembarking from on board the prizes of the merchandise 
destined to Brazil." (1917 Naval War College, International 
Law Documents, p. 62.) 

Other changes in Brazilian neutrality rules were also 

League of Nations and communications. — Under article 
23 of the Covenant of the League of Nations, the mem- 
bers of the League of Nations, subject to the provisions 
of international conventions. ao;ree that thev: 


''(e) will make provisions to secure and maintain freedom of 
communications and of transit and equitable treatment, for the 
commerce of all members of the League." 

To carry out this agreement and following certain pre- 
liminary investigations, the first General Conference on 
Communications and Transit was held at Barcelona on 
March 10 to April 20, 1921. 

The Advisory and Technical Committee for Communi- 
cations and Transit of the League also worked upon the 
same subject. The object of the conference was to de- 
vise measures to remove interference with international 
transport and to take steps toward u rendering interna- 
tional friction less frequent and diminishing the risk of 
war." The conventions agreed upon at the Barcelona 
Conference were to appl}' in time of war " as far as 
might be compatible." The conference also recognized 
the possibility of special regulations depending upon 
regional or geographical circumstances. 

Transport in transit. — The question of transport in 
transit had been defined as " transport which crosses a 
state, its points of departure and destination being out- 
side that state." In the explanation of this term, the 
report says: 

" Transport of this kind is specially in need of international 
guarantees. In the case of the transport of exports and imports, 
a State which obstructs or prevents free movement of such trans- 
port may indirectly cause serious prejudice to the economic re- 
construction of the world. In this way it injures every State, but 
it directly injures only, either those exporting States the trans- 
port of whose goods it prevents or obstructs in the course of im- 
portation, or those importing States which may, for instance, be 
in need of raw materials, which the obstructing State possesses, 
?nd the export of which it prohibits. As regards transport in 
transit, on the other hand, any interruption or obstruction injures 
third parties, both the States which export and those which im- 
port the products, the passage of which has been prevented. Such 
an interruption of traffic inevitably causes reprisals and counter- 
effects, the results of which cannot be limited. 

" The International Convention of Barcelona on Freedom of 
Transit is, therefore, designed to prevent interruption or obstruc- 
tion of this kind. With this object it provides — making due al- 


lowance, of course, for legitimate restrictions as regards police, 
national security, transport in war-time, etc., and also for the 
need of adapting its measures to the existing legal position, and 
to the local or regional conditions in various parts of the world — 
for complete freedom of transit and complete equality of transit 
conditions." (League of Nations. A45.1921.VIII, p. 3.) 

The provisions in regard to transport in transit were 
in principle to apply to traffic overland or by water. 

Transit through the Netherlands, 1918. — Problems 
arose during the World War in regard to the transit of 
goods and persons across Limburg from Germany into 
Belgium. The American Minister reported from The 
Hague, April 23, 1918, that: 

" Germany has within the last few days demanded of Holland : 

"(1) Removal of vexations customs examinations at the fron- 
tiers ; 

"(2) Passage of civil goods on the Limburg railways, from 
Miinchen-Gladbach via Roermond to Antwerp; 

"(3) That the Rhine convention shall be understood as Ger- 
many understands it, namely, that everything goes through in 
war, as in peace ; 

"(4) Unrestricted and uncontrolled transit of sand and gravel; 
and — 

"(5) That troops and munitions shall be allowed to pass through 

11 The best obtainable information is to the effect that demand 
number 5 has not actually been presented to the Dutch Govern- 
ment, but that a statement regarding it was handed in by German 
Legation through ' mistake ' with the four other demands. The 
Austrian Minister, I learn from what I consider to be perfectly 
good authority, was informed by his German colleague of the 
presentation of the first four demands, and he learned about the 
fifth demand only through the British Charge d' Affairs, the Dutch 
Minister of Foreign Affairs having told Sir Walter Townley of it 
and he having told a go-between. Loudon, Treub and, so far as 
I can learn, the members of the Government as a rule, and the 
Dutch Army pretend publicly to believe that these German de- 
mands are nothing but a bluff and that they are not in the least 
worried about them. Bluff or not, they produce a situation that 
Loudon states privately he considers serious. 

M German policy is now controlled entirely from General Head- 
quarters. Nobody doubts that they would order Holland entered 

4448—36 7 


for their own purposes, at any time, if they thought they had any- 
thing to get thereby. The demand for the passage of troops and 
munitions through Limburg, if it should be made, would not 
differ in its effects from a demand for the use of the Scheldt, 
or a demand for the use of any other part of Dutch territory. 
The Dutch would resent it and though I find that Entente mili- 
tary circles here believe or profess to believe that the Dutch Army 
would fight, there are other well-informed circles that think that 
the Dutch would not go beyond a breaking off of diplomatic rela- 
tions with the Central Powers and the necessary formal protests." 
(Foreign Relations, U. S., 1918, Supplement, p. 1797.) 

Navigable waterways. — The Treaty of Versailles, June 
28. 1919, in effect January 10, 1920, provided for certain 
navigable waterways in article 331 : 

" The following rivers are declared international : 

"the Elbe (Labe) from its confluence with the Vltava (Moldau), 
and the Vltava (Moldau) from Prague: 

"the Oder (Odra) from its confluence with the Oppa ; 

"the Niemen (Russstrom-Memel-Niemen) from Grodno; 

" the Danube from Ulm ; 

" and all navigable parts of these river systems which naturally 
provide more than one State with access to the sea, with or with- 
out transshipment from one vessel to another ; together with lateral 
canals and channels constructed either to duplicate or to improve 
naturally navigable sections of the specified river systems, or to 
connect two naturally navigable sections of the same river." 
(1919 Naval War College, International Law Documents, p. 160.) 

At the Barcelona Conference in 1921 further sugges- 
tions were made which were embodied in a statute which 
defined rivers of international concern : 

" Article 1. In the application of the Statute, the following are 
declared to be navigable waterways of international concern : 

" 1. All parts which are naturally navigable to and from the sea 
of a waterway which in its course, naturally navigable to and 
from the sea, separates or traverses different States, and also 
any part of any other waterway naturally navigable to and from 
the sea, which connects with the sea a waterway naturally 
navigable which separates or traverses different States. n 
(League of Nations Documents, C.479.M.327.1921.VIII, p. 17.) 


Aerial Navigation. — The Treaty of Versailles, in pro- 
viding for aerial navigation, in article 314 made specific 
provision in regard to Germany as follows: 

" The aircraft of the Allied and Associated Powers shall, while 
in transit to any foreign country whatever, enjoy the right of 
flying over the territory and territorial waters of Germany with- 
out landing, subject always to any regulations which may be made 
by Germany, and which shall be applicable equally to the air- 
craft of Germany and to those of the Allied and Associated 
countries. " 

These conditions were regarded as imposed obligations 
to remain in force till January 1, 1923, unless Germany 
was earlier admitted to adhere to the Aerial Navigation 
Convention or had become a member of the League of 

Aircraft over the Straits. — A convention on the Regime 
of the Straits signed at Lausanne, July 24, 1923, provides 
for freedom of transit and of navigation by sea and by 
air of the Strait of Dardanelles, the Sea of Marmora and 
the Bosphorus. Turkey ratified this convention on 
March 31, 1924, and British, Italian, Japanese, and 
French ratifications were deposited later in 1924. 

In the annex stating the rules for passage of vessels 
and aircraft, there are provisions regulating the details 
of passage: 

"1. (b). In Time of War, Turkey being Neutral. 

" Complete freedom of navigation and passage by day and night 
under the same conditions as above. The duties and rights of 
Turkey as a neutral Power cannot authorize her to take any meas- 
ures liable to interfere with navigation through the Straits, the 
waters of which, and the air above which, must remain entirely 
free in time of war, Turkey being neutral just as in time of 
peace." * * * 

"2. (b). In Time of War, Turkey being Neutral. 

" Complete freedom of passage by day and by night under any 
flag, without any formalities, or tax, or charge whatever, under 
the same limitations as in paragraph 2 (a). 

" However, these limitations will not be applicable to any bellig- 
erent Power to the prejudice of its belligerent rights in the 
Black Sea. 


"The rights and duties of Turkey as a neutral Power cannot 
authorise her to take any measures liable to interfere with navi- 
gation through the Straits, the waters of which, and the air 
above which, must remain entirely free in time of war, Turkey 
being neutral, just as in time of peace. 

•• Warships and military aircraft of belligerents will be for- 
bidden to make any capture, to exercise the right of visit and 
search, or to carry out any other hostile act in the Straits. 

"As regards revictualling and carrying out repairs, war vessels 
will be subject to the terms of the Thirteenth Hague Convention 
cf 1907, dealing with maritime neutrality. 

" Military aircraft will receive in the Straits similar treatment 
to that accorded under the Thirteenth Hague Convention of 1907 
to warships, pending the conclusion of an international Conven- 
tion establishing the rules of neutrality for aircraft." (2 Hudson, 
International Legislation, pp. 1030, 1032.) 

Panama Canal. — The proclamation of the United 
States, November 13, 1914, in regard to the Panama Canal 
contained rules in regard to the Canal : 1 

M Rule 15. Aircraft of a belligerent power, public or private, 
are forbidden to descend or arise within the jurisdiction of the 
United States at the Canal Zone, or to pass through the air 
spaces above the lands and waters within said jurisdiction. 

" Rule 16. For the purpose of these rules the Canal Zone in- 
cludes the cities of Panama and Colon and the harbors adjacent 
to the said cities." (1915 Naval War College, International Law 
Topics, p. 11; 38 U. S. Stat, p. 2039.) 

After the United States became a belligerent power it 
was necessary to amend these rules and on May 23, 1917, 
it was proclaimed that : / 

" Rule 13. Aircraft, public or private, of a belligerent, other 
than the United States, are forbidden to descend or arise within 
the jurisdiction of the United States at the Canal Zone, or to pass 
through the air spaces above the lands and waters within said 

" Rule 14. For the purpose of these rules the Canal Zone in- 
cludes the cities of Panama and Colon and the harbors adjacent 
to the said cities." (Foreign Relations, U. S., 1917, Supplement 
II, p. 1267.) 

1 For canals in wartime, see 1930 Naval War College, International 
Law Situations, pp. 115-134. 


Suez Canal, 1915. — A circular of May 1915 gave the 
Turkish point of view in regard to the status of the Suez 
Canal : 

" Considering that the British Government not only has failed 
to observe, in reference to the powers, the engagements to which 
it is bound by the convention of 1888, stipulating that no war 
vessel can remain in the Suez Canal, but also it is now fortifying 
the canal, while, on the other hand, the French Government, in 
view of hostile action against the Ottoman Empire, has landed 
troops in Egypt, the Imperial Ottoman Government, by reason of 
those facts, considers itself under the imperious necessity of tak- 
ing military measures for the protection of the imperial territory, 
of which Egypt forms a part, and of extending hostilities to the 
Suez Canal. If such measures cause any injury whatever to neu- 
tral vessels, it is thus evident that the responsibility will be upon 
I be French and British Governments." (1917 Naval War College, 
International Law Documents, p. 221.) 

Marginal air zone. — At the meeting of the Commission 
of Jurists at The Hague in 1923, the Italian delegation 
proposed that along the seacoast there should be an air 
belt under national jurisdiction extending seaward ten 
miles. This was not acceptable to the commission. It 
was argued that such a provision would give rise to con- 
fusion, that jurisdiction in the air should be appurtenant 
to the subjacent jurisdiction, that it would enlarge the 
area of neutral obligation without " compensating advan- 
tages ", and would make it more difficult for aircraft to 
determine with precision their location and to act accord- 
ingly. It was also pointed out that if the ten-mile air 
zone was adopted by a neutral, the belligerent aircraft 
might alight on the sea and pass at once out of the neu- 
tral jurisdiction. (1924 Naval War College, Interna- 
tional Law Documents, p. 152.) It has also been pointed 
out that under such a rule a vessel of war, surface or 
submarine, might on passing within ten miles of a neutral 
shore be exempt from aerial attack, and it should be 
pointed out that the aircraft would not be exempt from 
attack by anti-aircraft guns of the enemy vessels. 


A statement of the Italian delegation nevertheless 
maintained that: 

"3. From the point of view both of belligerent and of neutral 
States, there are reasons of the highest juridical and technical 
importance which make it indispensable to allow each State the 
power of including in its jurisdiction the atmospheric space to a 
distance of 10 miles from its coast. 

" 4. The difficulties resulting from the difference between the 
width of the marginal air-belt and the width of national terri- 
torial waters would not seem to be so serious as to render the 
Italian proposal unacceptable in practice. 

" 5. In any case, there is no juridical obstacle to the fixing of 
the same width of space for the marginal air-belt as for territorial 
waters, the Italian Delegation being of opinion that international 
law, as generally recognised, contains no rule prohibiting a State 
from extending its territorial waters to a distance of 10 sea-miles 
from its coasts." (Ibid, p. 153.) 

It is evident that while aerial navigation may and does 
call for further regulations, such regulations should be 
based upon a comprehensive understanding of all their 
bearings upon accepted laws relating to other jurisdic- 
tion. Action by a single state which would attempt to 
modify the laws of war or neutrality in time of war leads 
to confusion and may lead to an extension of the war to 
other states. 

Brazil and neutrality, 1933. — In the war between Bo- 
livia and Paraguay, Brazil declared neutrality on May 
23, 1933. In introducing the declaration there was a 
somewhat long explanatory statement in which it was 

11 Considering, that not being a member of the League of Na- 
tions, Brazil is not bound by the prescriptions of the Pact, and 
that, having to affirm its neutrality, it is guided by international 
law, written and customary, and by the elevated spirit of justice 
and morality which civilization has inculcated in the conscience 
or cultured peoples 

" Considering, that the General Rules of Neutrality adopted by 
Brazil during the World War, prior to having been drawn into 
it, and which were established by decree No. 11,037 of August 4, 
1914, and completed or modified by subsequent acts, do not fully 
satisfy the requirements of the present moment, because, at the 
time of their publication war in another continent was contem- 


plated, the acts of belligerency on the sea being those which 
would most preoccupy the country, whereas now the strife is 
between neighboring and mediterranean nations, problems of river 
navigation have arisen, and while the international spirit has 
greatly increased during the past years ideas regarding war have 
changed considerably ; " * * * 

" Considering, however, that in order to settle the incidents 
which may arise and to govern the actions of Brazil and the 
Brazilians, there is the general idea of neutrality, which consists 
in the neutral State abstaining from taking part directly or in- 
directly in the action of the belligerents ; in not disturbing in any 
;vay war operations occurring outside of its territory ; in not allow- 
ing, within it, acts of hostility; and in having assured the free- 
dom of its peaceful commerce, the expression of its sovereignty, 
which war abroad cannot reasonably limit ; deducing from this 
last proposition that only the normal purpose of the merchandise 
and its destiny, can influence its classification as hostile or 

While the rules in regard to neutrality issued under 
the declaration contained the ordinary provisions in re- 
gard to the use of Brazilian waters by vessels of war, there 
were also such provisions as the following : 

"Article 5. It is forbidden to the belligerents to make on the 
land, river, or maritime territory of the United States of Brazil, a 
base of war operations or to practice acts which may constitute a 
violation of Brazilian neutrality." 

"Article 21. Belligerent airplanes may not fly over the terri- 
tory or jurisdictional waters of Brazil without previous authoriza- 
tion. Those not authorized that land on Brazilian territory or 
waters will be detained. 

11 Military airplanes will not be given authorization to fly over 
Brazilian territory." 

Neutralization of maritime areas. — Proposals were made 
early in the World War to close considerable areas of the 
Atlantic Ocean to belligerents or to apply the ordinary 
rules of neutrality according to a geographical interpre- 
tation. It was suggested that a neutral zone in the At- 
lantic from the American coast to the meridian of Cape 
Verde be established to prevent interference with Ameri- 
can commerce. This proposition was considered by the 
Chilean Government and the following reply was made : 


" This Government has already been seeking means to diminish 
the disturbances which the activities of the belligerents off the 
American coasts have been causing to the maritime commerce of 
the nations of this continent, and had, in the first place, con- 
sidered the idea of fixing a neutral zone within which said com- 
merce would not be disturbed. Nevertheless, a careful study of 
the question leads me to think that a measure of this nature will 
not be accepted by the Government of Great Britain, and that, 
even though it were accepted by that Government, it would not 
be productive of any appreciable results in the sense desired. As 
a matter of fact, it seems doubtful that the British Government 
would accept a measure which in reality would be of much 
greater profit to Germany, whose merchant marine is now totally 
paralyzed, than to England which still maintains a maritime 
movement of some vitality in American waters. On the other 
hand, the efficacy of such a measure would have very little weight 
on the commercial interchange between Europe and America, 
because the danger would continue beyond the neutral zone, 
that is to say, in European waters wherein the situation of 
belligerent ships would remain as it is to-day. Consequently, the 
advantages of the measure would be restricted to the inter- 
change between American countries. Finally, the enormous ex- 
tent of the neutral zone would render the surveillance required by 
our neutral duties still much more difficult and costly than it is 
today, unless the measure were to be a merely illusory one. " 
(Foreign Relations, U.S., 1914, Supplement, p. 436.) 

There was also some discussion as to the joint action 
of the American states as to a proposition to the belli- 
gerents that " sections of the Southern Atlantic and Pa- 
cific should be closed to naval warfare and that the bel- 
ligerents should come to some agreement with the Union 
as to the protection of neutral shipping." 

The Pan American Union on December 8, 1914, passed 
a resolution favoring a commission to study " the prob- 
lems presented by the present European War " particu- 
larly as regards neutral relations. 

The Peruvian Minister at Washington in a communica- 
tion of December 12, 1914, mentioned the proposal of 

4i an American continental agreement with the object of impos- 
ing on belligerents for the first time respect for the inviolability 
of the American highways of commerce, as a new principle of 
international law arising out of the needs of a situation created by 


the devastating clash of such formidable elements of force and 

11 The fundamental object of the agreement which the Peruvian 
Government is seeking once clearly determined, there can enter 
into consideration no possibility that such an agreement may prove 
injurious to this or that belligerent and meet with its more or 
less open opposition. Since all that we seek is to prevent vio- 
lent aggressions from being carried beyond their proper theatre 
to the enormous distance at which America lies, and since in sup- 
port thereof a pacific right of self-preservation is invoked, which 
is obviously more worthy of respect than the right of destruc- 
tion and annihilation which each belligerent claims against his 
enemy, there is no occasion to ask which of the combatants will 
accept it. Let us proclaim, maintain, and enforce the right of 
the neutral nations, consolidated in the form of a continental 
agreement, to keep hostilities away from geographical areas not 
involved in the natural influences and effects of the war, where 
prevails a normal, valuable, and peaceful trade, which is experi- 
encing disastrous effects to the extent of crisis and ruin, daily 
aggravated by the continuance of such a state of things. The 
territorial waters fiction and, to a certain degree, the very right 
of asylum for ships of the belligerent countries in neutral harbors, 
have as their true foundation the safeguarding of moral and 
physical interests whose defense could not be subordinated to the 
right of aggression, if it may be so called, of one belligerent 
against the other. Respect of territorial waters and of vessels 
accorded asylum was enforced without ascertaining who might 
complain against those principles being put in practice; it was 
enough to know that they were the result of justified necessity, 
and the principles have grown to the estate of a right and of a 
right that is compulsory." (Ibid., p. 445.) 

In some of the South American states such proposi- 
tions as related to neutralization met with little response 
and the American Legation in Brazil reported on Decem- 
ber 11,1914: 

"The members of the Foreign Office are particularly jubilant 
over what is considered a decided success for their initiative. In 
business circles and among those not directly connected with the 
Government it must be confessed that there is no special en- 
thusiasm on this subject as it seems to be the general opinion 
that little of practical importance can be accomplished by the 
Pan American Union in the premises. Now that the German war 
vessels in this part of the World have been destroyed, it seems to 


bo the impression among practical persons that there is at present 
no further need for the good offices of the union." (Ibid., p. 452.) 

Attitude of United States to ward Switzerland. — The 
neutralization of Switzerland had been generally re- 
spected during the World War, and Switzerland had 
shown a disposition to maintain its neutrality by force 
when necessary. While the United States was not a party 
to the neutralization treaties in regard to Switzerland, it 
made known its attitude. 

''Washington, November 30, 1917, 5 p.m. 

" 1171. You are instructed to formally present the following 
communication to the Minister of Foreign Affairs: 

" 'In view of the presence of American forces in Europe engaged 
in the prosecution of the war against the Imperial German Govern- 
ment, the Government of the United States deems it appropriate 
to announce for the assurance of the Swiss Confederation and in 
harmony with the attitude of the co-belligerents of the United 
States in Europe, that the United States will not fail to observe 
the principle of neutrality applicable to Switzerland and the in- 
violability of its territory, so long as the neutrality of Switzerland 
is maintained by the Confederation and respected by the enemy. 

Lansing.' " 

(Foreign Relations, U. S., 1917, Supplement 2, Vol. I, p. 75S.) 

Limiting areas of hostilities. — Early in August 1914 
China raised the question as to whether European bellig- 
erents might consent " not to engage in hostilities either 
in Chinese territory and marginal waters, or in adjacent 
leased territories." Propositions " concerning the pos- 
sible neutralization of the Pacific Ocean " were advanced. 
There was in early August a general desire for the main- 
tenance of the status quo in the Far East. On August 13 
the German Government said: 

" 1. Germany does not seek war with Japan. 

"2. If Japan, on account of the treaty with England, asks that 
Germany do nothing against English colonies, warships, or com- 
merce in East, Germany will assent in return for corresponding 
promise from England. 

" 3. England and Germany to reciprocally agree that either all 
warships of both in East leave eastern waters or remain inactive 
as against the other, if remaining there. 


" 4. Japan, England, and Germany to agree that none of these 
three shall attack warships, colonies, territory, or commerce of 
any of the others in the East. 

" 5. The East to mean all lands and seas between parallels 
London 90 east and all Pacific to Cape Horn. 

" Notify German Ambassador in Tokyo- 

" If this zone is too large, smaller limits will be accepted." 
(Foreign Relations, U. S., 1914, Supplement, p. 169.) 

Japan on August 15 proposed to Germany : 

"(1) To withdraw immediately from the Japanese and Chinese 
waters German men-of-war and armed vessels of all kinds and to 
disarm at once those which cannot be so withdrawn. 

"(2) To deliver on a date not later than September 15, 1914, 
to the Imperial Japanese authorities without condition or compen- 
sation the entire leased territory of KiaochoW, with a view to 
eventual restoration of the same to China. 

" The Imperial Japanese Government announce at the same time 
that in the event of their not receiving by noon, August 23, 1914, 
the answer of the Imperial German Government signifying an 
unconditional acceptance of the above advice offered by the Im- 
perial Japanese Government, they will be compelled to take such 
action as they may deem necessary to meet the situation." (Ibid, 
p. 170.) 

On August 18 the British charge d'affaires in Wash- 
ington communicated to the Secretary of State the fol- 
lowing memorandum, 

" The Governments of Great Britain and Japan having been in 
communication with each other are of opinion that it is necessary 
for each to take action to protect the general interests in the Far 
East contemplated by the Anglo- Japanese Alliance, keeping spe- 
cially in view the independence and integrity of China as provided 
for in that agreement. 

" It is understood that the action of Japan will not extend to 
(he Pacific Ocean beyond the China Seas, except in so far as it 
may he necessary to protect Japanese shipping lines in the Pa- 
cific, nor beyond Asiatic waters westward of the China Seas, nor 
to any foreign territory except territory in German occupation on 
the continent of eastern Asia." (Ibid., p. 171.) 

On August 23 the Japanese informed the United States 
that as Germany had failed to make answer to the Jap- 
anese note of August 15, a state of war existed between 
Japan and Germany from noon August 23, 1914. 


In spite of discussion of limiting the area of hostili- 
ties, no agreement could be reached. 

Limits of belligerent tights. — When Germany issued on 
February 4, 1915, the war zone proclamation stating that 
neutral vessels exposed themselves to danger in the wa- 
ters surrounding Great Britain and Ireland and in the 
English Channel, the United States sent a note of pro- 
test. In this note of February 10. 1915, it was said : 

" It is of course not necessary to remind the German Govern- 
ment that the sole right of a belligerent in dealing with neutral 
vessels on the high seas is limited to visit and search, unless a 
blockade is proclaimed and effectively maintained, which this 
Government does not understand to be proposed in this case. To 
declare or exercise a right to attack and destroy any vessel enter- 
ing a prescribed area of the high seas without first certainly de- 
termining its belligerent nationality and the contraband character 
of its cargo would be an act so unprecedented in naval warfare 
that this Government is reluctant to believe that the Imperial 
Government of Germany in this case contemplates it as possible. 
The suspicion that enemy ships are using neutral flags improp- 
erly can create no just presumption that all ships traversing a 
prescribed area are subject to the same suspicion. It is to deter- 
mine exactly such questions that this Government understands 
the right of visit and search to have been recognized." (Foreign 
Relations, U. S., 1915, Supplement, p. 98.) 

Foreign interpretation of national duties. — Belligerent 
rights and duties as well as neutral rights and duties rest 
upon international law. Belligerents have often at- 
tempted to extend their rights and neutral duties even by 
suggesting that neutrals take action in regard to oppos- 
ing belligerents which might be beyond neutral obliga- 

On January 30, 1917, the Norwegian Government by a 
Royal Ordinance prescribed that after February 6, 1917 : 

" Submarines, equipped for use in war, and belonging to a belli- 
gerent power, may not be navigated or remain in Norwegian terri- 
torial waters. Breach of this prohibition will render such ves- 
sels liable to attack by armed force without previous warning. 

" This prohibition shall not prevent submarines from seeking 
Norwegian territorial waters on account of stress of weather, or 


damage, or in order to save human life; when within territorial 
waters in such cases the vessel shall be kept at the surface and 
shall fly her national flag and also the international signal indi- 
cating the reason of her presence. As soon as the reasons justi- 
fying the arrival of the vessel are no longer present, she shall 
depart from territorial waters." (1917 Naval War College, In- 
ternational Law Documents, p. 195.) 

The British and American Governments had raised 
question as to the measures taken to enforce this ordi- 
nance. To the Government of the United States in reply 
to a suggestion of a few days previous that Norwegian 
waters be mined against German submarines in addition 
to the patrolling of the waters, the Minister of Foreign 
Affairs on August 20, 1918, said: 

" With reference to the statement of the American Government 
that the Norwegian Government has not insisted on impartial 
compliance with the Norwegian resolution in question, and that 
the measures hitherto adopted have only been nominal, and in 
view of the recommendation of the American Government to the 
Norwegian Government to take such new and effective measures 
as will effectually prevent the passage of German submarines 
through Norwegian territorial waters, the Norwegian Government 
desires to point [out] the following: 

" The duties imposed in time of war by international law on a 
neutral state in respect of its territorial waters consist, partly 
in the obligation that it shall prevent by all the means at its 
disposal any of the belligerents utilizing them for operations of 
war or as a base there for, and partly in the obligation that it 
shall enforce upon all the belligerents equally the observance of 
the regulations it issues. No matter what may flow from these 
obligations, none of the belligerents is justified by international 
law in demanding that special measures be taken by the neutral 
state in its own territorial waters. The Norwegian Government 
is convinced that it has unquestionably fulfilled its obligations in 
respect of both the above-mentioned points. Just as its efforts 
since the commencement of the war have been directed towards 
the maintenance of an inviolable neutrality, so it is still its firm 
intention to maintain it in the future and to avoid any step which 
may be considered as a deviation from this attitude. 

" The above-mentioned resolution of January 30, 1917, which 
concerns the passage through and sojourn in territorial waters 
of submarines, is solely based on consideration of Norwegian in- 
terest and is obviously not intended to facilitate the war meas- 


uies of one or other of the belligerents. Neither does it enjoin 
upon Norway any other obligation under international law than 
that of enforcing the resolution equally upon all parties concerned 
which the Norwegian Government, as already mentioned, is con- 
vinced that it has done. It cannot concede the right to any state 
to demand special measures in order to insure its observance. 

" It will, however, be calculated to call forth the serious con- 
sideration of the Norwegian Government if it be established that 
German submarines have utilized Norwegian territorial waters 
as a passage in violation of the said resolution. The Norwegian 
Government must request the American Government for more 
detailed information in regard to the cases which the latter has 
in mind relative to the appearance of German submarines in Nor- 
wegian territorial waters. The Norwegian Government would ap- 
preciate as complete information as possible, such as fuller details 
as to the time and place and the certainty that the submarines in 
question were German in each case, besides information as to the 
state of the weather. 

" When the Norwegian Government receives the information re- 
ferred to from the American Government, it will immediately take 
into consideration [the measures] occasioned thereby in the in- 
terests of Norway and the Government might then feel called 
upon to take measures for sharper protection of Norwegian terri- 
torial waters. But it must definitely insist that it is its incontest- 
able right by international law to determine for itself what 
measures should be taken in this respect." (Foreign Relations, 
U. S., 1918, Supplement I, vol. II, p. 1779.) 

Position of state D. — While the geographical conti- 
guity of states X, Y, and D might give rise to certain 
cioubts as to the neutral obligations of state D, this con- 
tiguity would not affect the rights of X and Y under a 
declaration of war. 

The vessels of war of X or of Y might visit and search 
the merchant vessels of state D or of any neutral state. 
If a vessel of war of state Y should capture a merchant 
vessel of D or of a neutral state, the vessel of war might 
find difficulty in bringing it to a prize court and other 
problems might arise but it is possible that these might 
not arise and it would be for states Y and D to adjust 
such difficulties after they arise rather than for state D 
to presume in advance to declare the rights of Y. It is 
clear that state D could not legally determine the bellig- 


erent rights of state X nor could state D lawfully refuse 
to recognize these rights. The rights in regard to con- 
traband, continuous voyage, unneutral service, and other 
belligerent rights could not be denied to state X by 
state D. 

As a state not a party to the war, state D would not be 
at liberty to permit indefinite sojourn in its ports of ves- 
sels of war or to tolerate any act within its jurisdiction 
which would constitute a nonfulfillment of neutral duties. 

Manifestly from its geographical position, state Y may 
be under certain disadvantages when at war with a mari- 
time state, but the laws of war and of neutrality are not 
conditioned upon premises of a geographical nature 
though one or the other of the belligerents may be more 
strategically at an advantage on account of its location. 


(a) State A may lawfully in its proclamation of neu- 
trality exclude all vessels of war and vessels assimilated 
thereto. This would apply to armed merchant vessels, 
but ordinarily not to unarmed merchant vessels whether 
or not decks had been strengthened. 

(b) State B may lawfully refuse to admit vessels of 
war of X and Y with prize except on account of unsea- 
worthiness, stress of weather, or lack of fuel or supplies. 

(c) State C may lawfully refuse to permit aircraft of 
Y to fly over its territory to a vessel of Y which is at sea. 

(d) State D may not lawfully refuse to grant to X 
and Y rights which might flow from a declaration of war 
or refuse to accept any neutral obligations so far as aerial 
or maritime acts are concerned though the geographical 
location of state D might make special regulations justi- 


[Public Kesoltttion — Xo. 67 — 74th Congress] 
[S. J. Res. 173] 


Providing for the prohibition of the export of arms, ammunition, 
and implements of war to belligerent countries ; the prohibition 
of the transportation of arms, ammunition, and implements of 
war by vessels ^of the United States for the use of belligerent 
states ; for the registration and licensing of persons engaged in 
the business of manufacturing exporting, or importing arms, 
ammunition, or implements of war ; and restricting travel by 
American citizens on belligerent ships during war. 

Resolved oy the Senate and House of Representatives 
of the United States of America in Congress assembled, 
That upon the outbreak or during the progress of war 
between, or among, two or more foreign states, the Pres- 
ident shall proclaim such fact, and it shall thereafter be 
unlawful to export arms, ammunition, or implements of 
war from any place in the United States, or possessions 
of the United States, to any port of such belligerent 
states, or to any neutral port for transshipment to, or for 
the use of, a belligerent country. 

The President, by proclamation, shall definitely enum- 
erate the arms, ammunition, or implements of war, the 
export of which is prohibited b}^ this Act. 

The President may, from time to time, by proclama- 
tion, extend such embargo upon the export of arms, am- 
munition, or implements of war to other states as and 
when they may become involved in such war. 

Whoever, in violation of any of the provisions of this 
section shall export, or attempt to export, or cause to be 
exported, arms, ammunition, or implements of war from 
the United States, or any of its possessions, shall be fined 
not more than $10,000 or imprisoned not more than five 
years, or both, and the property, vessel, or vehicle con- 
taining the same shall be subject to the provisions of 
sections 1 to 8, inclusive, title 6, chapter 30, of the Act 

4448—36 8 105 


approved June 15, 1917 (40 Stat. 223-225; U. S. C., title 
22, sees. 238-245). 

In the case of the forfeiture of any arms, ammunition, 
or implements of war by reason of a violation of this 
Act, no public or private sale shall be required; but 
such arms, ammunition, or implements of war shall be 
delivered to the Secretary of War for such use or dis- 
posal thereof as shall be approved by the President of 
the United States. 

When in the judgment of the President the conditions 
which have caused him to issue his proclamation have 
ceased to exist he shall revoke the same and the pro- 
visions hereof shall thereupon cease to apply. 

Except with respect to prosecutions committed or for- 
feitures incurred prior to March 1, 1936, this section and 
all proclamations issued thereunder shall not be effective 
after February 29, 1936. 

Sec. 2. That for the purposes of this Act — 

(a) The term " Board " means the National Munitions 
Control Board which is hereby established to carry out 
the provisions of this Act. The Board shall consist of 
the Secretary of State, who shall be chairman and execu- 
tive officer of the Board; the Secretary of the Treasury; 
the Secretary of War; the Secretary of the Navy; and 
the Secretary of Commerce. Except as otherwise pro- 
vided in this Act, or by other law, the administration of 
this Act is vested in the Department of State ; 

(b) The term " United States " when used in a geo- 
graphical sense, includes the several States and Terri- 
tories, the insular possessions of the United States (in- 
cluding the Philippine Islands), the Canal Zone, and the 
District of Columbia; 

(c) The term " person " includes a partnership, com- 
pany, association, or corporation, as well as a natural 

Within ninety days after the effective date of this Act, 
or upon first engaging in business, every person who 
engages in the business of manufacturing, exporting, or 
importing any of the arms, ammunition, and implements 
of war referred to in this Act, whether as an exporter, 
importer, manufacturer, or dealer, shall register with the 
Secretary of State his name, or business name, principal 
place of business, and places of business in the United 
States, and a list of the arms, ammunition, and imple- 
ments of war which he manufactures, imports, or ex- 


Every person required to register under this section 
shall notify the Secretary of State of any change in the 
arms, ammunition, and implements of war which he ex- 
ports, imports, or manufactures; and upon such notifica- 
tion the Secretary of State shall issue to such person an 
amended certificate of registration, free of charge, which 
shall remain valid until the date of expiration of the 
original certificate. Every person required to register 
under the provisions of this section shall pay a registra- 
tion fee of $500. and upon receipt of such fee the Secre- 
tary of State shall issue a registration certificate valid 
for five years, which shall be renewable for further 
periods of five years upon the payment of each renewal 
of a fee of $500. 

It shall be unlawful for any person to export, or at- 
tempt to export, from the United States any of the arms, 
ammunition, or implements of war referred to in this 
Act to any other country or to import, or attempt to im- 
port, to the United States from any other country any of 
the arms, ammunition, or implements of war referred 
to in this Act without first having obtained a license 

All persons required to register under this section shall 
maintain, subject to the inspection of the Board, such 
permanent records of manufacture for export, importa- 
tion, and exportation of arms, ammunition, and imple- 
ments of war as the Board shall prescribe. 

Licenses shall be issued to persons who have registered 
as provided for, except in cases of export or import 
licenses where exportation of arms, ammunition, or im- 
plements of war would be in violation of this Act or any 
other law of the United States, or of a treaty to which 
the United States is a party, in which cases such licenses 
shall not be issued. 

The Board shall be called by the Chairman and shall 
hold at least -one meeting a year. 

No purchase of arms, ammunition, and implements of 
war shall be made on behalf of the United States by any 
officer, executive department, or independent establish- 
ment of the Government from any person who shall have 
failed to register under the provisions of this Act. 

The Board shall make an annual report to Congress, 
copies of which shall be distributed as are other reports 
transmitted to Congress. Such report shall contain such 
information and data collected by the Board as may be 
considered of value in the determination of questions 


connected with the control of trade in arms, ammunition,. 
and implements of war. It shall include a list of all 
persons required to register under the provisions of this 
Act, and full information concerning the licenses issued 

The Secretary of State shall promulgate such rules and 
regulations with regard to the enforcement of this sec- 
tion as he may deem necessary to carry out its provisions. 

The President is hereby authorized to proclaim upon 
recommendation of the Board from time to time a list 
of articles which shall be considered arms, ammunition, 
and implements of war for the purposes of this section. 

This section shall take effect on the ninetieth day after 
the date of its enactment. 

Sec. 3. Whenever the President shall issue the procla- 
mation provided for in section 1 of this Act, thereafter 
it shall be unlawful for any American vessel to carry 
any arms, ammunition, or implements of Avar to any port 
of the belligerent countries named in such proclamation 
as being at war, or to any neutral port for transshipment 
to, or for the use of, a belligerent country. 

Whoever, in violation of the provisions of this section, 
shall take, attempt to take, or shall authorize, hire, or 
solicit another to take, any such vessel carrying such 
cargo out of port or from the jurisdiction of the United 
States shall be fined not more than $10,000 or imprisoned 
not more than five years, or both; and, in addition, such 
vessel, her tackle, apparel, furniture, equipment, and the 
arms, ammunition, and implements of war on board shall 
be forfeited to the United States. 

When the President finds the conditions which have 
caused him to issue his proclamation have ceased to exist, 
he shall revoke his proclamation, and the provisions of 
this section shall thereupon cease to apply. 

Sec. 4. Whenever, during any war in which the United 
States is neutral, the President, or any person thereunto 
authorized by him, shall have cause to believe that any 
vessel, domestic or foreign, whether requiring clearance 
or not, is about to carry out of a port of the United 
States, or its possession, men or fuel, arms, ammunition, 
implements of war, or other supplies to any warship, 
tender, or supply ship of a foreign belligerent nation, but 
the evidence is not deemed sufficient to justify forbidding 
the departure of the vessel as provided for by section 1, 
title V, chapter 30, of the Act approved June 15, 1917 


{40 Stat. 221; U. S. C, title 18, sec. 31), and if, in 
the President's judgment, such action will serve to main- 
tain peace between the United States and foreign na- 
tions, or to protect the commercial interests of the United 
States and its citizens, or to promote the security of the 
United States, he shall have the power and it shall be 
his duty to require the owner, master, or person in com- 
mand thereof, before departing from a port of the 
United States, or any of its possessions, for a foreign 
port, to give a bond to the United States, with sufficient 
sureties, in such amount as he shall deem proper, con- 
ditioned that the vessel will not deliver the men, or the 
cargo, or any part thereof, to any warship, tender, or 
supply ship of a belligerent nation; and, if the Presi- 
dent, or any person thereunto authorized by him, shall 
find that a vessel, domestic or foreign, in a port of the 
United States, or one of its possessions, has previously 
cleared from such port during such war and delivered 
its cargo or any part thereof to a warship, tender, or 
supply ship of a belligerent nation, he may prohibit the 
departure of such vessel during the duration of the war. 

Sec. 5. Whenever, during any war in which the United 
States is neutral, the President shall find that special 
restrictions placed on the use of the ports and territorial 
waters of the United States, or of its possessions, by the 
submarines of a foreign nation will serve to maintain 
peace between the United States and foreign nations, or 
to protect the commercial interests of the United States 
and its citizens, or to promote the security of the United 
States, and shall make proclamation thereof, it shall 
thereafter be unlawful for any such submarine to enter 
a port or the territorial waters of the United States or 
any of its possessions, or to depart therefrom, except 
under such conditions and subject to such limitations as 
the President may prescribe. When, in his judgment, 
the conditions which have caused him to issue his 
proclamation have ceased to exist, he shall revoke his 
proclamation and the provisions of this section shall 
thereupon cease to apply. 

Sec. 6. Whenever, during any war in which the United 
States is neutral, the President shall find that the main- 
tenance of peace between the United States and foreign 
nations, or the protection of the lives of citizens of the 


United States, or the protection of the commercial inter- 
ests of the United States and its citizens, or the security 
of the United States requires that the American citizens 
should refrain from traveling as passengers on the ves- 
sels of any belligerent nation, he shall so proclaim, and 
thereafter no citizen of the United States shall travel 
on any vessel of any belligerent nation except at his own 
risk, unless in accordance with such rules and regulations 
as the President shall prescribe: Provided, however y 
That the provisions of this section shall not apply to a 
citizen traveling on the vessel of a belligerent whose 
voyage was begun in advance of the date of the Presi- 
dent's proclamation, and who had no opportunity to dis- 
continue his voyage after that date: And provided fur- 
ther, That they shall not apply under ninety days after 
the date of the President's proclamation to a citizen 
returning from a foreign country to the United States 
or to any of its possessions. When, in the President's 
judgment, the conditions which have caused him to 
issue his proclamation have ceased to exist, he shall re- 
voke his proclamation and the provisions of this section 
shall thereupon cease to apply. 

Sec. 7. In every case of the violation of any of the 
provisions of this Act where a specific penalty is not 
herein provided, such violator or violators, upon convic- 
tion, shall be fined not more than $10,000 or imprisoned 
not more than five years, or both. 

Sec. 8. If any of the provisions of this Act, or the 
application thereof to any person or circumstance, is held 
invalid, the remainder of the Act, and the application 
of such provision to other persons or circumstances, shall 
not be affected thereby. 

Sec. 9. The sum of $25,000 is hereby authorized to be 
appropriated, out of any money in the Treasury not 
otherwise appropriated, to be expended by the Secretary 
of State in administering this Act. 

Approved, August 31, 1935. 


Statement by the President 
August 31, 1935 

I have given my approval to Senate Joint Resolution 
173 — the neutrality legislation which passed the Congress 
last week. 

I have approved this joint resolution because it was 
intended as an expression of the fixed desire of the Gov- 
ernment and the people of the United States to avoid any 
action which might involve us in war. The purpose is 
wholly excellent, and this joint resolution will to a con- 
siderable degree serve that end. 

It provides for a licensing system for the control of 
carrying arms, etc., by American vessels, for the control 
of the use of American waters by foreign submarines; 
for the restriction of travel by American citizens on ves- 
sels of belligerent nations, and for the embargo of the 
export of arms, etc., to both belligerent nations. 

The latter section terminates at the end of February 
1936. This section requires further and more complete 
consideration between now and that date. Here again the 
objective is wholly good. It is the policy of this Gov- 
ernment to avoid being drawn into wars between other 
nations, but it is a fact that no Congress and no Execu- 
tive can foresee all possible future situations. History is 
filled with unforeseeable situations that call for some 
flexibility of action. It is conceivable that situations 
may arise in which the wholly inflexible provisions of 
section I of this act might have exactly the opposite ef- 
fect from that which was intended. In other words, 
the inflexible provisions might drag us into war instead 
of keeping us out. The policy of the Government is defi- 
nitely committed to the maintenance of peace and the 
avoidance of any entanglements which would lead us into 
conflict. At the same time it is the policy of the Govern- 
ment by every peaceful means and without entanglement 



to cooperate with other similarly minded governments to 
promote peace. 

In several aspects further careful consideration of 
neutrality needs is most desirable and there can well be 
an expansion to include provisions dealing with other 
important aspects of our neutrality policy which have not 
been dealt with in this temporary measure. 


By the President of the United States of America 

a proclamation 

Whereas section 2 of a joint resolution of Congress, 
entitled " Joint resolution providing for the prohibition 
of the export of arms, ammunition, and implements of 
war to belligerent countries ; the prohibition of the trans- 
portation of arms, ammunition, and implements of war 
by vessels of the United States for the use of belligerent 
states; for the registration and licensing of persons en- 
gaged in the business of manufacturing, exporting, or 
importing arms, ammunition, or implements of war ; and 
restricting travel by American citizens on belligerent 
ships during war ", approved August 31, 1935, provides 
in part as follows : 

The President is hereby authorized to proclaim upon recom- 
mendation of the Board from time to time, a list of articles which 
shall be considered arms, ammunition, and implements of war for 
the purposes of this section. 

Now, therefore, I, Franklin D. Roosevelt, President 
of the United States of America, acting under and by 
virtue of the authority conferred upon me by the said 
joint resolution of Congress, and pursuant to the recom- 
mendation of the National Munitions Control Board, de- 
clare and proclaim that the articles listed below shall be 
considered arms, ammunition, and implements of war for 
the purposes of section 2 of the said joint resolution of 
Congress : 

Category L — (1) Rifles and carbines using ammunition 
in excess of caliber 26.5, and their barrels ; 

(2) Machine guns, automatic rifles, and machine pis- 
tols of all calibers, and their barrels; 

(3) Guns, howitzers, and mortars of all calibers, their 
mountings and barrels; 

(4) Ammunition for the arms enumerated under (1) 
and (2) above; i. e., high-power steel- jacketed ammuni- 



tion in excess of caliber 26.5; filled and unfilled pro- 
jectiles and propellants with a web thickness of 0.015 
inch or greater for the projectiles of the arms enumer- 
ated under (3), above; 

(5) Grenades, bombs, torpedoes, and mines, filled or 
unfilled, and apparatus for their use or discharge; 

(6) Tanks, military armored vehicles, and armored 

Category II. — Vessels of war of all kinds, including 
aircraft carriers and submarines. 

Category III. — (1) Aircraft, assembled or dismantled, 
both heavier and lighter than air, which are designed, 
adapted, and intended for aerial combat hj the use of 
machine guns or for artillery or for the carrying and 
dropping of bombs, or which are equipped with, or 
which by reason of design or construction are prepared 
for, anv of the appliances referred to in paragraph 
(2), below. 

(2) Aerial gun mounts and frames, bomb racks, tor- 
pedo carriers, and bomb or torpedo release mechanisms. 

Categoty IV. — Revolvers and automatic pistols of a 
weight in excess of 1 pound 6 ounces (630 grams), using 
ammunition in excess of caliber 26.5, and ammunition 

Category V. — (1) Aircraft assembled or dismantled, 
both heavier and lighter than air, other than those in- 
cluded in category III; 

(2) Propellers or air screws, fuselages, hulls, tail units, 
and under-carriage units; 

(3) Aircraft engines. 

Category VI. — (1) Livens projectors and flame throw- 


(2) Mustard gas, lewisite, ethyldichlorarsine, and 

In witness whereof, I have hereunto set my hand and 
caused the seal of the United States to be affixed. 

Done at the city of Washington this 25th day of Sep- 
tember, in the year of our Lord nineteen hundred and 
thirty-five, and of the Independence of the United States 
of America the one hundred and sixtieth. 

[seal] Fraxklin D. Roosevelt. 

By the President : 
Cordell Hull, 

Secretary of State. 


-Section IX. Special Provisions Regarding Italy and 


The President on October 5, 1935, issued a proclama- 
tion as follows: 


" AVhereas section 1 of a joint resolution of Congress, 
entitled ' Joint resolution providing for the prohibition 
of the export of arms, ammunition, and implements of 
war to belligerent countries ; the prohibition of the trans- 
portation of arms, ammunition, and implements of war 
by vessels of the United States for the use of belligerent 
states; for the registration and licensing of persons en- 
gaged in the business of manufacturing, exporting, or 
importing arms, ammunition, or implements of war; and 
restricting travel by American citizens on belligerent 
ships during war ', approved August 31, 1935, provides 
in part as follows: 

" ' That upon the outbreak or during the progress of 
war between, or among, two or more foreign states, the 
President shall proclaim such fact, and it shall there- 
after be unlawful to export arms, ammunition, or imple- 
ments of war from any place in the United States, or pos- 
sessions of the United States, to any port of such bellig- 
erent states, or to any neutral port for transshipment to, 
or for the use of. a belligerent country ' ; 

"And whereas it is further provided by section 1 of 
the said joint resolution that — 

" ' The President, by proclamation, shall definitely enu- 
merate the arms, ammunitions, or implements of Avar, 
the export of which is prohibited by this act.' 

"And whereas it is further provided by section 1 of 
the said joint resolution that — 



" ' Whoever in violation of any of the provisions of 
this section, shall export, or attempt to export, or cause 
to be exported, arms, ammunition, or implements of war 
from the United States, or any of its possessions, shall 
be fined not more than $10,000 or imprisoned not more 
than five years, or both, and the property, vessel, or 
vehicle containing the same shall be subject to the pro- 
visions of sections 1 to 8, inclusive, title 6, chapter 30, 
of the act approved June 15, 1917 (40 Stat. 223-225; 
U. S. C, title 22, sees. 238-245).' 

" Now, therefore, I, Franklin D. Roosevelt, President 
of the United States of America, acting under and by 
virtue of the authority conferred on me by the said joint 
resolution of Congress, do hereby proclaim that a state 
of war unhappily exists between Ethiopia and the King- 
dom of Italy; and I do hereby admonish all citizens of 
the United States or any of its possessions and all per- 
sons residing or being within the territory or jurisdic- 
tion of the United States or its possessions to abstain 
from every violation of the provisions of the joint reso- 
lution above set forth, hereby made effective and appli- 
cable to the export of arms, ammunition, or implements 
of war from any place in the United States or its posses- 
sions to Ethiopia or to the Kingdom of Italy, or to any 
Italian possession, or to any neutral port for transship- 
ment to, or for the use of, Ethiopia or the Kingdom of 

"And I do hereby declare and proclaim that the arti- 
cles listed below shall be considered arms, ammunition, 
and implements of war for the purposes of section 1 of 
the said joint resolution of Congress: 

[Here follows the enumeration of articles as in the 
proclamation printed in section II, above.] 

"And I do hereby enjoin upon all officers of the United 
States, charged with the execution of the laws thereof, the 
utmost diligence in preventing violations of the said 
joint resolution, and this my proclamation issued there- 
under, and in bringing to trial and punishment any 
offenders against the same. 

"And I do hereby delegate to the Secretary of State 
the power of prescribing regulations for the enforce- 
ment of section 1 of the said joint resolution of August 
31, 1935, as made effective by this my proclamation 
issued thereunder. 


" In witness whereof, I have hereunto set my hand and 
caused the seal of the United States to be affixed. 

"Done at the city of Washington this fifth day of 
October in the year of our Lord nineteen hundred and 
thirty-five, and of the Independence of the United States 
of America the one hundred and sixtieth. 

" [seal] Franklin D. Roosevelt. 

" By the President : 
" Cordell Hull, 

" Secretat^y of State" 

No export licenses will be issued for shipments des- 
tined to Ethiopia or Italy or any Italian possession of 
-any of the arms, ammunition, or implements of war 
enumerated in the President's proclamation of October 
5th, 1935. 

In virtue of the power delegated to the Secretary of 
State to prescribe regulations for the enforcement of 
section 1 of the joint resolution of August 31, 1935, and 
of the President's proclamation issued thereunder, the 
Secretary of State may require exporters of any of the 
arms, ammunition, or implements of war enumerated in 
the President's proclamation to present convincing evi- 
dence that they are not destined to Ethiopia, Italy, or 
Italian possessions and may refuse to issue an export 
license for the same until such convincing evidence has 
been presented to him. 



Aerial navigation 91 

Aircraft, in Panama Canal Zone 92 

Aircraft carrier 42, 43 

Aircraft station vessel 42 

American solidarity 70 

Appam, case of the 85 

Areas of hostilities 98 

Argentine, orders of, as to transfer of colors 7, 32 

Armed merchant vessels 76 

Attitude of United States toward 83 

Lansing proposal as to, 1916 79 

Neutral 28 

And submarines 30 

Belligerent attitude toward 29 

(See also Merchant vessels.) 

Auxiliary vessels 79 

Baltica, case of the 4 

Barbarossa, the, cited 45 

Barcelona conference: 

As to international rivers 90 

On transit 88 

Barcelona convention, 1921 : 

As to flag of state without seacoast 72 

Base of operations 95, 101 

Belligerent rights 100 

"Benevolent neutrality" 71 

Bolivia 94 

Brazil : 

Declaration of war, 1917 70 

During World War 68, 87 

Neutrality declaration of, 1933 94 

Revocation of neutrality, 1917 68 

Treaty of, with United States, 1828 55 

British order in council, January 31, 1917 59 

Burden of proof 22 

Bynkershoek 66 

Capture : 

And seizure 1, 58 

Japanese regulations as to, 1914 56- 


120 INDEX 


Cargo, ownership of 18 

Chile, as to neutral zone 95 

China 99 

Commission of jurists, 1923 93 

Communications, League of Nations covenant as to 87 

Contraband 27, 54 

Delivery of, at sea 54, 56 

Proportion of 55, 57 

Conversion 39, 44, 73 

Convoy 35 

Exemption from visit and search under 25 

Right of 23 

Corporate ownership of vessels 6, 17 

Costa Rica, in World War 70 

Crimean War, 1854-56 4 

Dacia, case of the 7-16 

Daimler Company, Ltd., v. the Continental Tyre and 

Rubber Co., Ltd., cited 17 

Danube River 90 

Declaration of London: 

As to convoy 25, 35 

As to delivery of contraband 52, 55 

As to transfer of flag 5, 18 

As to treatment of captured neutral vessel 52 

Declaration of Paris, 1856 24,28 

Defense (see also Armed merchant vessels) 29 

Delivery of goods at sea 52, 54, 57 

Denmark, admission of belligerent war vessels to ports of__ 75 

Destruction of vessel 52 

Due diligence 74 

Egypt 93 

Elbe River 90 

Embargo 105 

Enemy character of vessel 17, 18 

Enemy goods: 

Seizure of 24 

Transfer of 23, 35 

Enemy origin 35 

Ethiopia and Italy, United States proclamation as to state 

of war between 115 

Etsabe, the, cited 24 

Export of arms and munitions, United States act, 1935, 

prohibiting 105, 115 

Far East, status quo in 99 

Farn, case of the 79 

INDEX 121 


Felicity, the, cited 53 


Right to fly 19,34 

World War treaties on 71 

Foodstuffs, sale of, in war 27" 


As to character of vessel 19 

Attack by merchant vessel of, on submarine 84 

Attitude of, toward transfer of flag 14 

Freedom of transit, Barcelona convention on 88 

Gentilis 64 


Attitude of, toward armed neutral merchant vessels 31 

Demands of, as to transit through Holland 89' 

Proposals of, as to maintenance of status quo in Far 

East 98. 

Transit of aircraft over 91 

War zone proclamation of 100 

Goods. Seizure as prize of 55- 

Government agent, status of 6Q 

Great Britain: 

As to admission of submarines to neutral ports 82 

As to transfer of flag & 

As to use of neutral waters 45 

As to visit and search 24 

Attitude of, toward armed neutral merchant ships 29 

Examination of neutral vessels in ports of 59 

Grey, Sir Edward 56 

Grotius 66 

Hague Conventions: 

III, as to opening of hostilities 5 

VI, on conversion 43, 73 

XIII, as to internment 46, 79 

As to prize in neutral waters 86 

Hall, J. A., on conversion 74 

Hamborn, case of the IT 

Hostile acts 12 

Hostilities, commencement of & 

Inland state at war 63-103- 

Institute of International Law 5& 

Interference with ships 39-62 

International law 41, 65 

International Naval Conference, 1 908-9 5,24 

See also Declaration of London. 
4448—35 9 

122 INDEX 

International rivers. See Rivers. 

International Traffic in Arms Act, U. S., 1935 115 

Internment 14, 20, 46, 78 


And Ethiopia, United States proclamation as to state 

of war between 115 

As to marginal air-belt 94 

As to marginal sea 76 

Jan Frederick, case of the 22 


Proposals of, to Germany, 1914 99 

Regulations of, as to capture at sea 56 

Kiaochow 99 

Kronprinz Wilhelm, the 45 

Kronprinzessin Mar gar eta, case of the 23 

Lansing, Secretary 79 

Lausanne Conventions, 1923 91 

League of Nations covenant, as to communications 87 

Licensing system for control of arms 107 

Limburg 89 

London Naval Conference, 1908-9. See International 
Naval Conference. 

London Naval Conference, 1930, as to submarines 47, 49 

London Naval Treaty, 1930 36, 43, 46, 49, 54 

Manual of Naval Prize Law, British Admiralty 24 

Marginal air zone 93 

Marginal jurisdiction: 

Six-mile limit 76 

Three-mile limit 76 

Maria, the, cited 24 

Merchant vessels. (See also Armed merchant vessels and 

submarines) 30, 36, 48 

Armed for defense 30 

Armed for offense 84 

Convoy of 28 

Sinking of 51, 80 

Stiffening the decks of 74 

Military aircraft 92 

Mississippi, S. S 83 

Navigable waterways 90 

Netherlands, The 

Closure of ports by, to armed merchant vessels 33 

Regulations of, as to vessels assimilated to warships 76 

Transit through 89 

INDEX 123 

Neutral ports : 

Admission of submarines to 82, 109 

Admission of vessels of war to 21, 46, 75 

Belligerent vessels in 109 

Prizes in 53, 79, 84 

Sequestration in 53 

Neutral rights 28, 29, 86, 10Q 

Neutral waters: 

Armed neutral merchant vessels in 32 

As base of operations 95, 101 

Mining of 101 

Netherlands proclamations as to, 1914 76 

Use of 45 

"Vessels of war or vessels assimilated thereto " in 74 

Neutral zone 95 

Neutrality : 

Brazilian declaration of, 1933 94 

Brazilian rules as to 87 

Breach of 82 

Laws of 2, 65 

Proclamation, 1793 (see also International Traffic in 

Arms) 66 

Revocation of 68 

What it is 66 

Neutralization of maritime areas 95 

Niemen River 90 


Ordinance of, as to neutral vessels 100 

Ports of: 

Admission of belligerent warships to 75 

Use, of, by armed merchant vessels 32 

Oder River 90 

Offensively armed merchant vessels 84 

Pan American Union 96 

Panama Canal, United States proclamation as to 92 

Paraguay 94 

Peru 97 

Piracy 29 

Pirates, armed neutral merchant vessels as 31 

"Place of safety" 36,49,52,80,81 

Ports of call 59 

Privateering 28 

Prize, in neutral waters 53, 79, 84 

"Proceed as directed" 58, 60- 

124 INDEX 


Prussia, treaty of, with United States, 1799 85 

Reprisals 58 

Rivers, international 90 

Roosevelt, President Franklin D., approval of neutrality 

legislation 111, 113 

Sale (see also Transfer of flag) : 

Of interned ships 10 

Or war supplies by citizens of neutral state 67 

Seacoast, state having no 71 

Seadromes 42, 43 


And capture, differentiation between 58 

Of vessels 51 

Under convoy 24 

^'Sending in" of vessels 51 

Sequestration 53 

Somers, the 47 

South American states, in World War 70 

Propositions of, as to neutral zones 97 

South field, the, cited 22 

Spain, restrictions of, as to use of ports by armed merchant 

vessels 32, 33 

Stowell, Lord 53 

Straits, regime of 91 

Submarine warfare.. 80 

Submarines 54 

Abolition of 48 

Admission of, to neutral ports 82, 109 

And merchant vessels 30, 36, 48 

In neutral waters 101 

London Naval Conference as to 49 

United States attitude toward: 

1916 83 

1930 47 

Use of 79,81 

Suez Canal 93 


Admission of belligerent warships to ports of 75 

Proclamation of, as to convoy 28 

Use of ports of, by armed merchant vessels 33 


United States attitude toward neutrality of 98 

Ten-mile air zone 93 

INDEX 125 

Territorial waters (see also Marginal jurisdiction): 

Entrance of submarines to 109 

Extent of 76 

Norwegian Ordinance as to 100 

Three-mile limit. See Marginal jurisdiction. 

Transfer of flag 1 

After opening of hostilities 5 

Before war 34 

Bona fide 9, 13, 16 

In transitu 4 

Time element in 6 

United States instructions as to 7 

Transfer of goods in transitu 21, 23 


Denunciation of 42 

International law and 41 

Types of 41 

Treaty of Lausanne 72 

Treaty of Neuilly 72 

Treaty of Saint- Germaine-en-Laye 72 

Treaty of Trianon 72 

Treaty of Versailles 71, 90, 91 

Treaty of Washington, 1871, principles of 41 

Troops and munitions, passage of 89 


As to status of Suez Canal 93 

Freedom of transit in 91 

Twenty-four-hour rule 21 

United States: 

Act prohibiting export of arms, ammunition, etc 105 

Attitude of: 

As to convoy 27 

As to armed merchant vessels 32, 83 

As to mining of neutral waters 101 

As to submarines 47, 83 

Instructions, as to foreign vessels in its ports 32, 44 

Instructions regarding transfer of flag 7 

Neutrality proclamation, 1793 66 

Neutrality proclamation, 1935 115 

Note as to revocation of neutrality by Brazil. 69 

On sale to belligerents by neutral citizens 67 

Rules regarding Panama Canal Zone 92 

Treaty of, with Brazil, 1828 55 

Treaty of, with Prussia, 1799 85 

126 INDEX 


Unneutral act 10 

Use of force 29 

Vaterland, the 45 


Aircraft station 42 

Armed merchant. See Armed merchant vessels. 

Auxiliary 79 

Belligerent, travel of American citizens on 110, 115 

Character of 18, 19 

Corporate ownership of 6, 17 

Destruction of neutral 52, 54 

Interned 11 

Interference with 39-62 

Merchant. See Armed merchant vessels; Merchant 

Ownership of 6, 17, 20 

Seizure of 51 

Sending in of 51 


Admission of, to neutral ports 21, 74 

Vessels assimilated to 74, 75 

Visit and search 24, 36, 81 

Refusal to stop for 36, 49 

Resistance to 36, 50, 58 

Right of, under convoy 25 

Vrow Margaretha, case of the 22 


Brazilian declaration of, 1917 70 

Economic pressure during 12 

Inland state at 63 

International Traffic in Arms Act as to 105 

Laws of 65 

State of 3, 64, 116 

War zone, German 100 

Washington, President, neutrality proclamation of, 1793- _ 66 

Washington Treaty, 1922 43,46,73 

Wilson, George Grafton, service of, at Naval War College.- in 
World War, transfer of flag during 6